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CHAPTER 4 France: drug use and supply illegal, possession undefined — situation unsatisfactory? PDF Print E-mail
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Books - European Drug Laws
Written by Jules Gylys   


Part A. Summary

French legislation against drug use or supply fulfils — not to say over fulfils — international and European requirements on drug control. French law has even been used by UNDCP to draft the model laws proposed to countries wishing to implement UN Conventions on narcotics and psychotropic substances. Under this legislation, which asserts the principle of total prohibition, the use and supply of narcotics are penal offences. However, addicts can receive medical treatment in pla& of imprisonment, as drug users are seen primarily as sick rather than criminal. In reality, this opportunity is offered to a low proportion of consumers. In the first place, only addicts qualify for treatment, while cannabis users or occasional users are not offered a medical option, consequently the law is more severe with the less dangerous drug consumers. In the second place, the law concerns consumers but not dealers. Consumers who resell part of their drugs cannot apply for treatment; they will receive a criminal conviction and can only hope to receive medical treatment in prison. As a result of this restrictive definition of the medical alternative, treatment is followed by only 5% of addicts who are prosecuted.

To strengthen the prohibition even more, the law also defines the notion of incitement very broadly. Because it is an offence to present drug use in a positive light the efficiency of prevention and of harm reduction policies is limited. Giving information on the safest way of using drugs like heroin or Ecstasy is in contravention of the law. In the end, this definition leads to ridiculous situations like the recent case against "The Body Shop" when a tube of cream for dry skin made from hemp was seen as incitement because it showed a hemp leaf on the label.

But the major problem of French legislation is the lack of definition of possession for use. This behaviour is not foreseen by the law. Indeed, police and prosecutors can act against users either for consuming or for trafficking drugs. Moreover, to consume the substance, it is necessary to buy, carry, possess or transport. Many consumers are not prosecuted under use-related but under supply-related legislation. This creates a very severe set of laws. Users prosecuted as traffickers cannot apply for medical treatment and the penalties are not comparable (e.g. one year for use, 10 years for import or possession, 20 years for growing narcotics plants).

In conclusion, French legislation appears to be in compliance with the most repressive interpretation of the UN drug Conventions. At the same time, this policy creates some restrictions on human rights. The ECHR and the Commission have pointed out violations of the principles of human rights. So one can question whether the current policies are the most efficient, given that the statistics show a permanent increase of trafficking and use since 1970.

PART B. DESCRIPTION AND ANALYSIS OF LAW

B.1.    Drug use

The main characteristic of French legislation against drug abuse is the existence of inaccurate definitions of reprehensible behaviours such as drug use, the state of being addicted, and those of possession or supply of drugs. The consequence is that a wide variety of legal provisions are available to punish drug users, either using penal or customs regulations.

B.1.1. Measures on drug use per se

(a)    Legal measures in force

French legislation applies the principle of the total prohibition of drug use except for medical purposes and under medical control. This prohibition constitutes a penal sanction. But its specificity — in comparison with other penal offences — is that the user is seen not only as a delinquent but also, or especially, as a sick person. Consequently the user can decide of his own volition to undergo detoxification treatment or can be forced to do so by a judge as an alternative or adjunct to the penal conviction. Thus, the penal offence is linked to a therapeutic option for helping to overcome addiction.

The penal offence against drug use per se

The prohibition of drug use originated in a law of 12 July 1916.' Only consumption of opiates, cocaine, and cannabis in a group was prohibited, while using the substances alone was not. All other narcotics were covered by a law of 1845 on poisonous substances. Current legislation dates from a law of 31 December 1970. This text defines all the situations regarding use, possession and supply of narcotic drugs and was included in the Public Health Code (PHC) in the chapter related to poisonous substances, articles L.627 et.seq. Since the adoption of the New Penal Code (NPC) in 1992, all offences have been transferred into the NPC except drug use and provocation to use. For this reason users can be prosecuted either under the specific law on drugs or under the law on poisonous substances.

The prohibition on drug use falls under article L.628 of the Public Health Code (PHC) as modified by law on 31 December 1970. The existence of this offence in the PHC when the other laws on drugs are part of the New Penal Code (NPC) of 1992 is a way of emphasising the objective that Parliament wanted to achieve by the law: that the user is above all a sick person and addiction is a social disease. Article L.628 gives an enlarged definition of drug use. It sentences those who use, in an illicit manner, one of the substances or plants classified as narcotics. Thus, two elements are needed to commit the offence: voluntary consumption and a narcotic substance.

(i) The definition of article L.628 covers all kinds of consumption without any restriction. The offence can be committed by any possible method: the drug can be smoked, injected, eaten, by a person alone or in group, in a public place or at home, on several occasions or only once, by an addict or an occasional user; any use of narcotics for entertainment (recreative use) is punishable. The law does not distinguish between the quantities and an offence is committed for a gramme or less. However, the court will take the quantity of drug into account when fixing the penalty and will frequently prosecute the offender under supply regulations if the quantity is considered large.

Evidence of consumption can be provided by any means such as arrest in the act, the confession of the user, the testimony of other users, or simply the possession of narcotics.

(ii) In order to bring a procedure against consumers, the substance must be classified as a narcotic drug, but there is no definition of what a narcotic substance is either in French law or in the international treaties. Professor Caballero has demonstrated that providing such a definition is impossible.' Article L.626 of the PHC merely states that plants and substances are classified as poisonous substances by government regulation, and article L.627 PHC that poisonous substances are classified as narcotic drugs by decree. Referring to this text, a decree of 29 December 1988 entrusts classification to the Ministry of Health.' The Minister in turn delegates competence to the Director of Pharmacy and Drugs.'

Narcotics are divided into four lists on the model of international classification set out by the Single Convention of 1961 (UN 1961) and the Convention on Psychotropic Substances of 1971 (UN 1971). But a substance can be a narcotic even if it is not classified on the lists, which are also not the only source of narcotics definition. As the PHC gives an extremely vague definition of the classification process, the Court of Cassation asserts that any regulation can classify plants or substances as narcotic drugs.' Indeed, according to the Court, narcotics may be classified automatically by UN 1961 — since it was ratified in France by a decree of 22 May 19696— or by articles R.5179 to R.5181 PHC, which organised the medical trade of narcotics and, among others, cannabis. Two consequences ensue from this analysis:

Some plants or substances that are not on the national or international lists can be narcotics. For example, khat (cata edulis), which is not classified by the Single Convention or by the regulation of 22 February 1990, is a narcotic as it is mentioned by article R.5180 PHC.

Articles R.5171 to R.5181 do not complement article L.628 on drug addiction but article L.626 on the production and trade of poisonous substances. The penalty incurred is that foreseen by article L.626, which is double that of article L.628. Therefore cannabis use, which is covered by article R.5181, will be punished twice as severely as heroin or cocaine use, which is not mentioned in the laws on poisonous substances, but only by article L.628.

Moreover the Court of Cassation recently extended the notion of narcotics even further in order to make prosecution easier. Previously, the courts had to identify in some way the substance that had been used. This requirement was very formal: court decisions had to name the narcotic as it was defined in the classifications. If not, prosecution was not possible. On this basis the Court of Cassation atmulled an Appeal Court decision against a cannabis user because cannabis was mentioned under a local name: Zama1.7 This requirement, which had been justified by the legality principle, is no longer required by the Court of Cassation, which admits prosecution even when the drug is not defined in the classified lists if the substance used has been identified. For example, the Court of Cassation admitted prosecution for hashish use and trafficking although the term is not in the classifications, because it refers to "a derivate of cannabis, which itself is listed as a narcotic"! Moreover prosecution can be even be brought against a person who has not consumed drugs but thought he was doing so. The addict who injects or smokes sugar believing that it was heroin or cocaine will be punished, not as a drug user but as trafficker for the attempt to possess narcotic drugs (see below for possession offences).9

Although the imprecise definition of drug use makes prosecution easier, it can certainly be criticised with respect to the principle of legality, as defined in the 1789 Declaration of Human Rights and the European Convention of Human Rights (ECHR). Such a vague definition of the offence does not seem to satisfy the requisite for a certain "quality of law" mentioned by the European Court of Human Rights and by the French Constitutional Council. The equality of the citizen before the law is also in doubt because, although prosecution under article L.628 PHC offers the user tile opportunity of a medical alternative to a criminal sentence, this opportunity does not exist if prosecution is based on article L.626 and R.5171 et.seq.

The medical alternative

The duality of the user's status as delinquent and sick person has been mentioned. When Parliament adopted the 1970 law, the criminalisation of addiction was justified by statements that the penal offence would prompt users to go into treatment. The penal option was seen as an ultima ratio, with most users following a medical alternative. The organisation of treatment comes under the Public Health Code. It can be followed voluntarily, quite apart from penal procedures, but it can also be ordered by a judge during penal procedure.

Independently of penal procedures, users can ask for detoxification (article L.351 PHC). The treatment is done free of charge, anonymously and gives penal impunity. Article L.628-1 PHC states that no penal prosecution will be brought against a person who follows detoxification treatment, but impunity and anonymity are guaranteed only for offences relating to drug use. If the addict commits another offence he can be prosecuted. The limit is too restrictive as addicts often commit other offences such as robbery as well as acts which are qualified as trafficking such as possession, buying or transportation etc. in order to obtain drugs for themselves (see below B.3.).

On a semi-voluntary basis detoxification can also be proposed by a health authority (L.355-18 PHC), a hospital or a doctor. The proposal is done as part of a penal procedure and the addict can refuse to follow such treatment. If he agrees, no prosecution will be brought, but if he refuses, the health authority must inform the prosecutor and a penal procedure will be started.

Treatment can also be ordered by a judge during the penal procedure (art. L.628- 1 to L.628-6 PHC). The prosecutor, the judge who draws up the case and the court have the faculty to decide on detoxification.' In this case the addict has no choice; the Public Health Code uses the terms "order", "force" etc. that indicate an obligation on the defendant.

In practice, the decision to enforce treatment depends on the substance used and on the decisions of the police at the moment of arresting the user. With regard to substances, the Ministry of Justice requests prosecutors to reserve treatment for heroin or cocaine addicts. Cannabis detoxification may only be decided if consumption is "massive, repeated, or combined with other drugs". Unfortunately, while the proposal is logical, its effect is to make the law more severe with cannabis or non-addicted users than with heroin addicts. Heroin addicts can avoid being sentenced by following medical treatment, whereas the occasional cannabis user has no alternative to the penal sentence. To reduce the absurdity of this system, the Ministry of Justice invites prosecutors not to prosecute occasional users but to summon the user and to direct him to the health authority. Such a procedure is not an obligation and the prosecutor decides whether or not the user must be prosecuted or treated. The result is a broad spectrum of solutions, which depend on each court or even on each judge. If the Ministry of Justice regrets that this situation has lasted since 1987 it has not been able to obtain harmonisation of court policy."

Another criterion for whether or not to treat users is the decision taken by police after arrest. In large towns, occasional cannabis users will be arrested and the drug seized, but the police will not act against them. The case will be concluded before ever reaching the judicial authorities. In small towns, however, even low levels of consumption are prosecuted. This difference obviously has an effect on the treatment option, but treatment will also depend on the legal base of the procedure when the police decide to intervene. Some police will act according to use-related legislation while others will act according to supply-side offences. The penalty and the possibility of following treatment will depend on this first choice.

The law does not prescribe the type of treatment: any medical, psychiatrie or psychological course of treatment can be followed if the addict is detoxified. This total freedom in the choice of treatment creates some problems. Certain groups like Le Patriarche, which accept addicts for treatment, have been strongly criticised. Classified as sects, those organisations are reputed to be transferring addiction from drugs to an individual or guru.' Once treatment has been decided on, the ultimate resolution of each case depends on the success or not of treatment. When detoxification is decided by the prosecutor, the addict who accepts treatment will not be prosecuted (L.628-1 al.1) and if the detoxification is ordered by the judge, the court can decide whether or not the user should be sentenced (L.628-3 in fine). On the other hand if the addict does not accept treatment he can be prosecuted under article L.628 PHC for drugs use. The law is very strict. No failure is admitted: either the addict is detoxified and he benefits from a stay in penal procedure, or he uses drugs again and this failure will automatically lead to prosecution under article L.628 PHC. This rigour is not compatible with the reality of addiction that is a long, difficult, and uncertain process, in which individuals often lack sufficient will power to arrive at definitive cure. To adapt the law to this reality a Ministry of Justice regulation of 1995 proposed making a distinction between temporary and definitive abandonment. For the first few times the addict abandons treatment, the detoxification personnel must try to persuade him to return to treatment. Only when the abandonment is definitive are the health authorities obliged to inform the prosecutor. At this point the regulation insists that a new treatment can still be ordered.

All these modifications demonstrate the desire of the authorities to strengthen the implementation of the medical aspects of the law, but despite these efforts, the mediCal alternative does not work. Very few courts develop a treatment process that involves police, prosecutor and health authorities. The circumstances that enable treatment to be offered are too restrictive and only 5% of the users who go before a prosecutor benefit from the medical alternative.''

This failure in the implementation of the law has opened up room for new alternatives. The police do not transmit many cases to the prosecutor but merely summon the user, after which the case is closed. Courts have also found new ways to encourage users to detoxify: the first is to suspend the court's decision. After debating the case, the court fixes a certain period of time that must pass before passing sentence. If during this period the addict goes into treatment the sentence will be lower. Another measure is to have treatment as part of the sentence. But statistically, the impact of all those measures is extremely low. More than 45% of drug use offences end with a prison sentence without any suspension.14

French authorities have recently started to apply some limited harm reduction policies. Measures such as syringe exchange and methadone treatment have been implemented but their legal framework is very weak, and police and courts still act against addicts who carry syringes as evidence of drug use.

(b)    Intensity of measure

With regard to standard penalties, and based on the European Intensity Measure, drug use will be at level EIM.iii. Users can be sentenced to one year of imprisonment and a FF25 000 fine under article L.628 PHC. NIM is at 3.33 %. On a first conviction the culprit can avoid serving a sentence by going into medical treatment. An analysis of court sentencing practice shows that imprisonment is ordered in two-thirds of cases under article L.628 PHC, a ratio that should be compared with the 5% of users arrested who go into treatment.'

Apart from these major penalties, drug use can be punished by obligatory or optional complementary penalties which are decided by the court. Under article L.628 PHC, an obligatory complementary penalty is the confiscation of the substances seized. Other optional complementary penalties do not target users directly. Article L.629-1 PHC allows the court to close premises where drugs have been consumed on a temporary basis; article L.629-2 allows the administrative authorities to close premises if an administrative authorisation is required for them to be open.

(c)    Judicial/administrative procedures followed

Under the French classification of offences, drug use is a middle range offence (délit), and is lower than a crime. Procedures are dealt with in the Correctional Court. As required by the ECHR, the culprit is represented by a lawyer and can ask for an interpreter. The court decision can be referred to the Court of Appeal and, if a question of law is debated, by the Court of Cassation.

(d)    Passage of this law

It has not been traditional French practice to develop the objectives of a law before discussing it and still less to evaluate the compliance of the text with those objectives.' This was obvious in the case of the criminalisation of drug use in 1970 because prohibition had not been debated properly at the time of the vote.

Drug use in a group had been forbidden since 1916. The innovation of the 1970 law was that all forms of use were prohibited. The draft of the law — prepared by the National Assembly — did not envisage this total prohibition, and only use in a group was mentioned, as before. The suggestion that the proposal should aim at prohibiting all forms of use, including individual use in private, came from the Government. Madame Bernat de Célis analysed the process that led to this amendment.'17 Various considerations — domestic and international — explain the decision: a news item about an overdose which received much attention, the negotiations over UN 1971, the need to be in compliance with UN 1961, and finally, an argument between the Ministries of Justice, Interior and Health. The well-being of users did not feature in the debate and criminalisation was essentially seen as a way to strengthen the fight against trafficking. ln the end the Government was unable to justify its proposal. The reporter who presented the amendment in the National Assembly was uneasy as his project did not envisage prohibiting all kinds of use.'s He started his speech by saying: "People will wonder how this measure can be justified". The Government text explained it by stating, "in a period when the right to health is progressively recognized for all citizens — in particular with the development of national social insurance and social welfare — it seems appropriate to expect in return that society imposes some limits on the use that each person can make of his own body".'9 This explanation was hardly convincing since it would theoretically prohibit many actions that create more risks for health than drug use such as driving a car, ski-ing, or working in a factory. Two other justifications were put forward in the Senate. The first one likened drug use to a contagious disease which was putting society at risk." Monsieur Marcilhacy, the reporter, talked of the proselytism of addicts, saying that while some actions could be tolerated when only few persons were doing them, when large numbers of citizens were involved a social problem was created. The second justification was to point out the cost of drugs and the risk between criminality and drug use!' The discussion on the appropriateness of the criminalisation of drug use did not go any further, and article L.628 was passed unanimously by Parliament without any debate. Only after passing the law did its promoters explain the prohibition by saying it would be an exceptional measure and that it would encourage users to go into treatment.

The same lack of debate occurred when the penal code was discussed by Parliament in 1992. The text did not modify article L.628 PHC and only the articles on trafficking were transferred from the Public Health Code to the Penal Code and modified. Drug use was not part of the debate. A few authors, including Professor Pieu Couvrat, regretted that Parliament did not take the opportunity to debate the criminalisation of drug use.' The question arose casually before the voting for the article on drug importation and exportation. In the 1970 law this act was a misdemeanour offence, but the penalty (20 years' imprisonment) was comparable to that for full crimes. The New Penal Code strictly limits the penalty for minor offences to 10 years imprisonment. To keep the penalty at 20 years the offence has to be a crime, but this caused problems since crime offences are judged by a special Court of Assizes composed only of professional magistrates. This Court was created in order to have an appropriate answer to international trafficking and organised criminality. But most of the persons prosecuted for importation are consumers who cross the border with drugs bought in other countries and thus strictly speaking are not traffickers. Moreover the Regulations of the Ministry of Justice ask prosecutors to proceed against such persons for drug use and not for importation. Despite this, prosecutors proceed on the basis of trafficking by importation. The Ministry estimates that the number of procedures for importation amounts to 2,000 cases per year. To use the exceptional procedure of the special Court of Assizes is inappropriate in such cases, and has been seen by Parliament both as out of proportion to the guilt involved and impossible to apply because of the large number of cases. But instead of trying to distinguish in law between importation for use and for trafficking, Parliament simply decided to reduce the penalty to 10 years imprisonment "due to the number of cases"." In doing so, Parliament unfortunately lost its only occasion to discuss the adequacy of the law to prosecute users.

Since the 1980s authors have criticized French drug use policy, and this has grown with the spread of AIDS throughout Europe. Whereas originally the criminal sentence was supposed to be the exception, it is obvious that nowadays it is the rule. The principal response has been to criminalise users and the impact of treatment is marginal. Moreover the criminalisation of all kinds of behaviour related to drug use has been an obstacle to the development of a health policy against AIDS among heroin users. Until 1987, the sale of syringes was controlled to make them difficult to obtain for heroin users. Until few years ago, being in possession of a syringe constituted evidence of drug use. Those prohibitions do not make it easy to implement programmes on needle exchange. Currents projects which are being developed to inform users on the safer consumption of certain drugs like Ecstasy are also handicapped by the total prohibition. All the Regulations of the Ministry of Justice to strengthen the implementation of the law have not modified the policy of prosecutors and very few courts offer a medical alternative to the penal sentence.

At the same time, the law has not even reached its objective of reducing drug abuse. Because treatment has not been developed, offences have increased without people being dissuaded from using drugs. According to police statistics, the number of arrests for drug offences — use and supply — increased by 773.68 % between 1972 and 1983." In 1994, police recorded 59,697 drug offences. Of the total, 44,261 were for drug use and 8,257 for use and supply." Cannabis was seized in 62.32% of drug use cases. Drug use represented 2.5% of all the criminal cases dealt with by the courts.' Drug use has literally spread throughout the territory and through all the population. The European Monitoring Centre on Drugs and Drug Addiction estimated that there were 208 users for every 100, 000 citizens in France. Between 11 and 16 % of French people have smoked cannabis at least once." This increase in the number of users has important consequences for police actions, especially in the large cities. Arrests are the exception when the culprit is only using drugs without supplying them. But in smaller towns and villages, prosecution is brought for less than one gramme without any real effect on the consumer population. This leads to questions on the compliance of French legislation with international regulations on drug control.

(e)    International/EU Compliance

It cannot be said that criminalisation is in compliance with international and EU regulations since none of them makes it obligatory, whereas they all request the implementation of medical treatment. France has ratified all three UN Conventions and the Council of Europe Convention on money laundering (CE 1990) and satisfies the requirements of those treaties. But by focusing on the "war on drugs" another objective has fallen by the wayside: the protection of human rights. The compliance of French legislation with ECHR can be discussed with reference to two aspects: the definition of offences and the criminalisation of drug use.

The definition of the drug use offence must be compared to the principle of legality. This principle, mentioned by article 7 of the Convention, asserts that nobody can be prosecuted unless a law has defined the prohibition and the sentence. For the European Court of Human Rights this means that the rule must exist in the form of law, regulations or courts decisions" and that the rule must be of a certain standard or "quality". The quality can be evaluated on the basis of two sub-criteria, of which the first is that the rule must be accessible and foreseeable in its consequences." This means ihat the rule must be understandable by the person, even though he may need to ask for advice.' In the case of drugs offences, it is not certain that the rule is understandable even after a lawyer's advice has been taken. Faced with a vague definition of use, the citizen cannot be sure of the nature of his behaviour, or of the licit or illicit character of the substance or of the penalty that he might incur. As stated above, the consumption of drugs can be prosecuted either according to offences of drug use, or according to those that prohibit traffic. The citizen cannot know whether his acts will be defined as use of drugs, use of poisonous substances or traffic. The decision is taken by police and/or prosecutor without any objective criteria, and yet the outcomes are very important. Depending on which legislation is used, the person will or will not be eligible for medical treatment and may or may not be incarcarated, with a sentence ranging from one to 20 years imprisonment. Moreover the citizen cannot be sure that the substance he intends to use is a narcotic drug or not, since the definition can be provided by any regulation and not only by legal classification. Even so, the citizen would require to have a sound knowledge of pharmacology and of the law, as narcotic drugs are often defined by their pharmacological name. Ecstasy, for example, is classified as MDMA or 3,4-methylenedioxy-methamphetamine. Even this knowledge may not suffice as the Court of Cassation admits certain procedures for substances which are not narcotics, but which are seen as narcotics or as comparable to them. It has happened for example, that MDA, which is not classified, was considered by the Court to be a kind of Ecstasy.' The existence of such inaccurate definitions of drugs and of consumption does not comply with article 7 of ECHR. Nor does the law satisfy article 5.1. of the Convention on the kind of sanction foreseen. The Convention permits the arrest of drug users (article 5.1.e of the Convention). Until recently the European Court of Human Rights decided that this text gave Member States a choice of action. They could unconditionally decide the nature of the deprivation of freedom. Users could be treated or jailed and-were either addicts or occasional users, in compliance with article 5.1.e.' The latest decisions of the Court seem to modify this analysis. The Court requires a link between the cause of the measure and the nature of the measure. Deprivation of freedom is only legitimate if it is an appropriate answer in a democratic state. The Court combines article 5.1.e and 5.1.a to consider that 5.1.a applies to penal offences when 5.1.e applies to deprivations of freedom justified by medical treatment. Imprisonment will be the normal answer for penal oft'ences regarding article 5.1.e, but it will not be legitimate when the deprivation of freedom is justified by the necessity of treatment. Only medical constraint will be admitted under article 5.1.e. In the case Bizotto v Greece, the Court legitimated the imprisonment of Mr Bizotto, because he was not only a user but also a trafficker. Imprisonment was justified by article 5.1.a. Conversely, we could expect that if he had only been a user, the Court would not have permitted imprisonment. This solution has already been adopted by the ECHR regarding persons who are If it is extended to drugs users, it will have two consequences: imprisonment will no longer be permitted for those who only consume drugs without being traffickers, and deprivation of freedom for treatment will be permitted for addicts but not for occasional users. Offences relating to drug use would have to be rescheduled with different penalties or by making a distinction between different kinds of consumers. Such consequences could be very important, but one must add some reservations. The definitions of narcotics offences are imprecise and, to use drugs, people will necessarily commit acts which are qualified as trafficking such as possessing or buying. It will always be possible to categorize the behaviour of consumers as traffic to allow criminalisation even if it is not the "spirit of the law" (see B.3).

B.1.2. Use in a group, gifts/exchanges of drugs

(a)    Legal measures in force

Article L.628 PHC covers all possible kinds of drug use. There is no separate legislation text to punish use in a group. In this case, each user can be prosecuted for drug use. Nevertheless, some court decisions attach specific consequences to use in a group if one of the addicts dies of an overdose. The Court of Cassation has in some cases convicted the other users for attempted murder. At the same time the civil section of the Court of Cassation has refused to recognize the civil responsibility of other users for the death by overdose of one of them because the victim himself was at the origin of the harm done to him."

The solution is different for gifts/exchanges of drugs. Any drug transaction is part of supply. These acts are seen as trafficking and are penalised as such by article 222- 37 NPC, which prohibit the offer or transfer — this includes exchange — of drugs. As this article is part of supply, it will be analysed under section B.3.

B.1.3. Aggravated circumstances of drug use

(a)    Legal measures in force

The law does not distinguish between different kinds of use. All kinds are covered by the same article L.628 PHC without any hierarchy in the behaviours. If the act is related to supply, courts will not bring proceedings according to use-related offences but according to anti-trafficking legislation.

The most important issue is whether drug use can be an aggravating circumstance or, on the contrary, whether, as with mental illness, it excludes the commission of an offence when another criminal offence is committed under the effects of drugs or because of drug consumption (e.g. theft or prostitution to buy drugs). For most legal scholar's, being under the effect of drugs must be assimilated to a mental illness." Thus if drugs destroy the mental capacity of the culprit no prosecution can be brought. If the drug only reduces the mental capacity, the court must take it into account when deciding on the penalty. This analysis is based on article 122-1 NPC which dismisses penal action against a person who was mentally ill at the moment when he committed an offence. This text does not take into account the cause of the illness and even voluntary intoxication excludes the criminal offence.

Although this analysis is logical regarding the terms of article 122-1, it can be criticized on the grounds of its disregard for the interests of society. Some authors think that if someone talces a substance on purpose before committing an offence he must accept all the risks created by his decision. As with "Dutch courage" in England, drug use must be an aggravating circumstance and not the opposite, even if it destroys mental capacity.

The Court of Cassation and the Ministry of Justice follow this analysis. Although the New Penal Code does not specify, using drugs is an aggravating factor for other penal offences.

B.1.4. Incitement to use drugs

(a)    Legal measures in force

Incitement to use drugs is covered by various offences depending on the nature, the act, and the age of the victim. Most of those offences are linked to traffic not to abuse, and are included in the New Penal Code. The variety of texts causes some confusion in the conceptualisation and in the hierarchy of the offences. In order to classify them authors distinguish between three kinds of incitement: incitement by furnishing means of consumption, incitement by small-scale trafficking and incitement by propaganda or provocation to use or to traffic.'

Incitement by giving the means for narcotics consumption is covered by article 222-37 §2 of the NPC. This text forbids the action of facilitating drug use for another person.' Only positive acts to help someone are punishable; simply doing nothing when seeing drug consumption is not sufficient grounds for prosecution.' A mention must be made of pharmacists. Article 222-37 §2 specifically forbids them to supply narcotics, knowing that the prescription was produced to oblige the patient. Police can show that a doctor was aware of the illicitness of the prescription in several ways, including the violation of legal obligations regarding the prescription of narcotics or the lack of medical examination before the narcotics were prescri&d.'

Those offences do not exactly fit the definition of incitement but by supplying drugs or providing the means of using them, consumption is made possible. Case studies demonstrate this ambiguity. Except for proceedings brought against doctors and pharmacists, courts refer to article 222-37 §2 when they act against small-scale traffickers. In doing so they make a distinction between small-scale dealing and major trafficking which is prosecuted under §1 of the same article. This may seem surprising as article 222-39 NPC is aimed specifically at small-scale trafficking but this new piece of French legislation has been interpreted differently by the courts as a response to user-dealers.

Classified as incitement by small-scale trafficking, article 222-39 NPC was adopted by law on 17 January 1986 and was included in the New Penal Code in 1992. Its purpose was to give a specific answer to minor trafficking. It forbids the sale of drugs for personal consumption with an aggravating circumstance if the victim is under age (222-39 §2 NPC). But, although introduced to punish small-scale trafficking with an intermediate penalty, its significance has been modified by courts to cover another behaviour that had been forgotten by the law: the addict-dealer. Courts searched in the narcotics legislation for the closest text with which to proceed against user-dealers. Article 222-39 NPC is used, on condition that the offender is an addict'. If the offender who resells drugs is not an addict the courts refuse to enforce article 222-39 and they base prosecution on article 222-37 §2 NPC.

Being an addict is not specifically mentioned in the text of the law but article 222- 39 NPC bears a penalty (5 years imprisonment), which lies on the scale between that for drug use (1 year) and that for traffic (10 years). The consequence of these court decisions is that the law has increased in severity. Small-scale traffickers cannot benefit from article 222-39 if they are not addicts and so are sentenced as major traffickers. Addicts are prosecuted as small-scale traffickers if they re-sell drugs and are not entitled to request detoxification treatment.

A third category of incitement — incitement by propaganda — includes legislation that is either part of the Public Health Code or of the chapter of the New Penal Code on the protection of minors.

The first paragraph of article L.630 of the PHC prohibits two behaviours: the provocation to use or to traffic in drugs, regardless of whether the provocation has any effect, and the promotion of drug use or trafficking. The provocation to use or to traffic aims at acts which are not directly linked with traffic or use but which can favour them. The provisions can be applied to written material, songs, films etc. that make the drug culture appear in an attractive light.' The editor of a postcard saying "I love L.S.D." was sentenced under this article because the card was an incitement to use the drug." In order to ensure prosecution of any such behaviour, the second paragraph of article L.630 punishes the provocation to use any kind of substance that is presented as having the same effects as a narcotic drug with the same penalty. Courts do not have to demonstrate that the substance is really a drug. In an extreme case, it might be possible to convict a person for suggesting that drinking tea at four o'clock gives the same effect as smoking marijuana.

The end of the first paragraph of article L.630 creates an even broader offence by punishing the promotion of drug use or trafficking. The text prohibits all kinds of behaviour which show the use or trafficking in narcotics in a favourable light. The effect is to prevent the provision of objective information on drugs. If, without even praising drugs, someone does not say that drugs are a terrible evil, then prosecution is possible. The only permitted comments are subjective and therefore scientific or realistic comments are forbidden. This article has created important problems since the introduction of harm reduction policies. One of the measures envisaged was the provision of information to users about the appropriate way to consume drugs when it was obvious that someone was going to use them. This pragmatic approach is legally impossible because of article L.630 §1. Giving information on the proper way to use drugs like Ecstasy or the provision of injection rooms for heroin users are punishable. This creates tensions between police and harm reduction structures.
Section V, chapter III of the New Penal Code introduces other offences to protect minors from incitement to use of or traffic in drugs. Article 227-18 punishes direct provocation to use drugs, whereas article 227-18-1 punishes the provocation to traffic. Both articles provide for an aggravating circumstance when the victim is 15 years old or less. The New Penal Code introduces a new offence in the incitement of a minor to drink alcohol habitually and to excess. Although the law stipulates a difference of treatment between narcotics and alcohol — incitement to drink alcohol is not an offence if not "habitual" or "to excess" — it is the first time in French legislation that the two behaviours are cited at the same time.

(b)    Intensity of measure

The intensity of measure depends on each offence, but the hierarchy seems somewhat surprising. The regulations on incitement have been set up progressively and the penalties envisaged are not always logical.

With regard to standard penalties, and based on the European Intensity Measure, all the offences of incitement will be at level EIM.iii. But the NIM will be different. For incitement by giving the means for drug consumption (article 222-37 §2), NIM will be 30%. For incitement by small scale trafficking (222-39 NPC), NIM will be 15% if the victim is adult and 30% (222-39 §2 NPC) if he is under the age of 18. For incitement by provocation, the standard offences according to article L.630 PHC are the same as those according to article 222-39 §1 NPC, with a NIM of 15%. Finally, the offences introduced to protect minors are: for provocation to use —,NIM 15% if the victim is under 18 and 20% if he is under 15 years; for provocation to traffic — NIM of 20% if the victim is under 18 and 30% if under 15.

Article 222-37 §2 is comparable with major traffic, with no difference in the penalties. The sentence can be 10 years imprisonment and a FF50 000 000 fine for all offences under this article. Moreover the court can decide on a "safety period" which can be two-thirds of the prison sentence, during which the culprit will not benefit from any measure of liberty (article 132-23 NPC). Again, as with major traffic, to the standard penalties must be added the long list of complementary penalties and most of the accessory penalties (see B.3).

The penalties envisaged by article 222-39 §1 are lighter: 5 years imprisonment and a FF500 000 fine. But they increase to 10 years and FF 1 000 000 under §2 if the victim is under age. The safety period and the complementary penalties are applicable as for traffickers.

The offences committed under article L.630 of the PHC will be sentenced with 5 years of imprisonment and a FF500 000 fine, as under article 222-39 §1. But no safety period or complementary penalties are specified.

Prosecution under article 227-18 NPC will lead to a prison sentence of 5 years and a FF700 000 fine if the victim is under 18, and a 7 year sentence and a FF1 000 000 fine if the victim is under 15. Conviction for incitement to traffic will be sentenced with 7 years of imprisonment and a FF1 000 000 fine if the victim is under 18, and 10 years of imprisonment and a FF2 000 000 fine if the victim is under 15. Under both articles, various complementary penalties can be ordered by the court (article 227-29 and 227-30 NPC):

the loss for a period of 5 years — 10 if the offence is a crime — of the following civil, political and family rights:
to vote
to pursue a career in the judiciary or to practice in a court or as a solicitor to be a witness in a court (except for simple statements )
to be guardian of a child or of a mentally-ill person (except for one's own child and after a court decision);
the suspension of the driving licence for five years
the annulment of the driving licence with the prohibition on requesting another one for a period of 5 years
the prohibition on leaving French territory for 5 years.
the publication and the circulation of the court verdict.

(c)    Judicial/administrative procedures followed

All the offences of incitement are middle range offences (délit). The procedure is the same as that for drug use offence (see upper B.1.1).

(d)    Passage of this law

In discussing the definition of the offences under French law doubts were raised as to the legality of article L.630 PHC.41 The question was raised before voting took place on the 1970 law. While there was unanimity on the punishment of incitement, disagreement arose over the criminalisation of presenting drugs in a "favourable light". Some felt that the notion was too vague for a penal offence. An amendment was proposed in the National Assembly to cancel the offence," but the Government refused on the grounds that this offence allowed prosecution of persons who seemed to discourage drug use but who, in fact, promoted it by the way they presented it. The offence was not only maintained but also extended to any substance presented as having the same effect as a narcotic drug.

If the desire to have a strong policy against incitement is legitimate, the very broad definition given by article L.630 PHC is counter-productive. The will to prevent incitement restricts comments to moralizing or subjective speech. Prosecutions can seem ri'cliculous, like the recent court case against a manager of "The Body Shop" company. The fact that a label on a tube of dry skin cream showed a hemp leaf was seen by police as an incitement. The effect of such procedures has been counter-productive and everybody smiles when they see the company advertisement in all the newspapers, recommending, "Arrest dry skin (not our sales assistantsr. But even if article L.630 is a dangerous weapon in the hands of the courts, they proceed under these provisions and the others on incitement, believing that they are reinforcing penal action against narcotics use and trafficking.

(e)    International/EU Compliance

While incitement is only mentioned in the official commentary on UN 1961 with regard to controls over advertisement, incitement was specifically targeted in UN 1988." French legislation is in compliance with the definition given by UN 1988, even when the Convention requests Parties to criminalise complicity in incitement (article 3, §1c, iv). Compliance with another requirement of UN 1988 — that regarding the proof of the full knowledge of the offence — is less certain. Article 3 §3 proposes that the evidence can be deduced by objective facts. In doing so it creates a presumption of guilt which cannot readily be in compliance with the decision of the ECHR and with article 121-3 §1 of the NPC, which affirms the principle that in order to convict, it must be shown that offenders had full knowledge of the prohibition. In practice, knowledge of the prohibition is often deduced by the courts on the basis of objective facts. Although the end result is not satisfactory, French legislation seems to be in compliance with international treaties on this point too.

B.1.5. Any other legal measures on drug use (not possession)

The major problem with French drug legislation is the extreme confusion in the definition of offences. It will be seen in B.3 below that the weakness of legal definitions has allowed the courts to prosecute users for traffic and not for drug use. But users can be prosecuted under other offences. As has already been mentioned, narcotic drugs are part of poisonous substances, and prosecution can be brought either for drug use (L.628 PHC) or on poisonous substances offences (L.626 PHC). The consequences are very important. Although offences will be at level EIM iii in both cases, L.628 or L.626 PHC, the penalty is not the same. A consumer can be sentenced to one year of imprisonment on article L.628 PHC and to two years on L.626 PHC. NIM will be at 3.33% under t.628 and 6.66% under L.626. Furthermore a medical alternative cannot be requested if prosecution is brought for poisonous substances and not for narcotic drug use.
Article 222-37 §2 NPC (described above under incitement to use) punishes the attempt to obtain narcotic drugs with a false prescription as if it were trafficking. Although this text seems to target traffickers, it also applies to users. The penalty in this case will be the same as that for trafficking with a maximum of 10 years imprisonment and a fine of FF50 000 000 (see B.3).

B.1.6. Policing in relation to drug users OR drug possession

The combination of the various offences which can be used to prosecute users reduces the efficiency of the system foreseen by article L.628 PHC. Local policies emerge to the detriment of the unity of law and of the equality of the citizen. Only some users benefit from a medical alternative to penal action. Finally, the quality of trafficker prevails over that of consumer, especially for user-dealers. Even when article L.628 NPC is used to prosecute, the authorities have never been able to make the medical and the penal sides operate together. Most of the time, penal action creates a limit to treatment rather than an opportunity for treatment, as was expected.

Parliament has never been willing to modify the law. The case is very sensitive and no party has wanted to hold a parliamentary debate on the subject. Successive governments have tried to upgrade the quality of the law by Regulations, but the constitutionality of such a process is uncertain and its efficiency is low. As mentioned in B.1.1., when a prosecution is brought against a consumer medical treatment is provided in only 5% of cases. Imprisonment will be ordered in two-thirds of cases, without any suspension in 45 per cent of them.' Clearly, French legislation favours the penal response over the medical approach, even though the objective of the law was quite the opposite. The control of addiction is entirely in the hands of the police and the Justice Ministry. Medical and social structures talce second place, such that the response given is the one which the police and judicial authorities are accustomed to providing.

Between 1971 and 1986, the Ministry of Justice tried to mitigate the effects of the law by a series of Regulations, but their impact has been low, not to say insignificant. In 1978 the Ministry decided on a depenalisation of cannabis use. The Regulation of 17 May 1978 pointed out that the law was more severe for cannabis users than for consumers of harder drugs, whereas the risks to society were lower." The text of the Regulation requested prosecutors not to act against cannabis users unless use was too important or linked to another addiction. This Regulation was reconfirmed in 1984 but has not been applied by prosecutors, who still act against cannabis users."

In 1987, after moving the emphasis to social and medical action against drug use, the Justice Ministry changed its policy again. A Regulation of 12 May 1987 made a distinction between occasional users and addicts." If prosecutors consider that use is equivalent to addiction, they can bring a criminal prosecution. With regard to the medical alternative, the Regulation proposed that it should be ordered in the first instance but that if the addict failed, he should be prosecuted. This severe interpretation of the law did not cause the courts to introduce a more repressive approach and they retained their middle-range policies.The latest Regulation, which dates from 28 April 1995, gives up any attempt at harmonising court practices5'. Rather than issuing more guidelines which are not followed, it lists ail the possibilities open to prosecutors, beginning with depenalisation and ending with imprisonment, hoping perhaps that the magistrates' consciences will help to upgrade the exercise of the law.

B.2.    POSSESSION (not for supply)

Possession for use, not for supply, is not foreseen under French legislation. All other actions such as self-supply for personal use, facilitating possession by others, incitement to possess fall under the offences relating either to drug use or to supply.

The absence of a specific offence of possession for use is a major problem in French legislation. For the law, such behaviour does not exist and only possession for trafficking is considered. The police must either act under drug use provisions (article L.628 PHC) or against trafficking (article 222-37 NPC). Facilitating possession by others — and more generally, incitement offences — are also prosecuted as incitement to traffic or to use (see B.1.4.). Moreover to obtain supplies for persona] use can be seen as a criminal offence if the user produces his own drugs, for example, by growing cannabis. In this case, the behaviour is covered by article 222-35 of the NPC and the penalty is of 20 years' imprisonment, a FF50 000 000 fine and the trial must be held in a Special Court of Assizes! To avoid this prosecutors requalify the offence either as drug use or possession for supply. The difficulty is even greater because of customs regulations, which do not make provision for drug use but only for smuggling. If a user is arrested by customs in possession of drugs he will be prosecuted as a trafficker.

A significant proportion of the consumer population is prosecuted for trafficking and not for use. An analysis of court decisions shows that under the same text, for example article 222-37 NPC, there are two basic options. One is extremely severe and results in imprisonment and no suspended sentence. The other option does not order a prison sentence (suspended or not) but only a reasonable fine of a maximum of FF50 000 000. This option is applied to consumers and not to traffickers.'

The Government has been aware that this practice does not reflect the aims of the 1970 law. A Regulation of 30 March 1973 criticized the prosecution of users, and recommended that it should cease.' But after 1973 the Government no longer opposed the severity of judicial practice," and courts and the police still use possession for supply to proceed against users.' The worse example is a 1994 verdict of the Court of Cassation.' The Court of Appeal convicted a prison inmate as a trafficker for possession of 1 gramme of cannabis that had been found in his cell by prison guards. The Court of Cassation endorsed the decision because the culprit knew where the drug was. The fact that the drug was not his and that he said he was afraid to denounce the real possessor was not accepted as justification.

In practice, the decision to prosecute users for possessing drugs with the aim of supply is taken by police on very subjective criteria. In Paris, to distinguish between consumers and possessors the police refer to the "evaluation of the inspector", the quantity of drugs, any prior convictions and even the "social level" of the consumer and his financial situation. If he has enough money, he will be presumed to be a consumer, otherwise a trafficker.' It seems that if one is an addict then it is better to be rich...!

While the lack of a specific offence for possession for use is an obvious disadvantage, it is also true that it is very difficult to find objective and efficient criteria on which to distinguish possession for use and possession for trafficking. Some European legislations decide according to the quantity of drugs involved," but the risk here is that traffickers adapt their behaviour to stay under the "use level". The only criterion is the intent of the offender, that is, his motives. But such a subjective criterion must be applied cautiously and is not mentioned by French law.

B.3.    Supply (including possession related to supply)

B.3.1. National measures on supply

(a)    Legal measures in force

To use drugs the addict has to perform the same acts as the trafficker: he buys, imports or sometimes grows the narcotic, he transports it, stores and keeps it etc. Indeed, trafficking legislation can be applied to users. The Regulation of 30 March 1973 tried to avoid the development of this jurisprudence by stating that possession and acts of trafficking for the purpose of personal use should dealt with as for use." But the courts did not follow this analysis. They allowed prosecutions to be brought against consumers under trafficking provisions.' Parliament also validated this practice with the adoption of the New Penal Code. Prison sentences for import or export of drugs were reduced from 20 to 10 years to avoid the offence being classified as a crime, because users were as concerned in most cases.' This was a way of saying that users could be prosecuted as traffickers if they brought drugs across borders.

Trafficking is covered by articles 222-34 to 222-43 of the New Penal Code that replaced the law of 31 December 1970. The penalty depends on the seriousness of the behaviour. There are three crimes, while other offences are classified as misdemeanours.

The first of the crime offences is against people who direct international organised drug trafficking (article 222-34). The second prohibits the production or manufacture of drugs (article 222-35). In this article, §2 creates an aggravating circumstance if the offence is part of organised criminality. This offence has a very large definition and includes, among others, the cultivation of narcotic plants. Finally article 222-36 §2 penalises in the same way the import or export of narcotics if the activity is linked to organised criminality.

The other offences are classified as less serious. Article 222-36 §1 punishes the import or export of narcotics. These acts are also covered by article 414 of the Customs Code, but the penalty and the procedures are different. Article 222-37 prohibits most of the other trafficking activities: §1 forbids the transportation, possession, offering, sale, purchase and use (emploi) of narcotics; §2 penalises incitement but also the act of obtaining narcotics with a false prescription. Money laundering is also prohibited by article 222-38 and article 222-39-1. The first penalises the act of helping others to justify the origin of money deriving from drug trafficking and participation of any kind in money laundering. The second punishes a person who cannot justify the origin of their assets when that person is in regular contact with traffickers. Lastly, article 222-39 — mentioned above — prohibits the sale or the offer of narcotics for personal use.

The attempt to commit any of these offences is punishable in the same way as the offence itself.

(b)    Intensity of measure

Prosecution for trafficking does not allow for a medical alternative, even for users, who can only hope to benefit from treatment during their imprisonment. The European Intensity Measure is at level ElMiii for all the trafficking offences but the National Intensity Measure depends on the offence.

Regarding crime offences, the penalty foreseen by article 222-34 is in a higher category of French law. The manager of a group of organised traffickers will be sentenced to a maximum of life imprisonment. Indeed, NIM is at 100°A for life imprisonment fixed to 30 years in this study. Production and manufacturing of narcotics (222-35 §1) is sentenced by 20 years, with NIM at 66%. The two aggravating circumstances foreseen by articles 222-35 §2 and 222-36 §2 for production and manufacturing or import and export of narcotics in an organized group of traffickers will lead to sentences of 30 years, NIM 100°A. All those offences can also be punished with a fine of FF50 000 000.

Regarding minor offences, the penalty is a ten-year prison sentence (NIM 33%) except for the offences under articles 222-39 §1 and 222-39-1 §1 for which the maximum prison sentence is five years (16%). The fines for all those offences are different:

50 000 000 for trafficking by import, export (article 222-36), transport, possession, offer, sale, purchase, use or obtaining drugs by false prescription (222-37)

5 000 000 for money laundering (222-38), with the possibility for the court to increase the fine up to half of the value of goods or money which have, been laundered.

500 000 for the sale or offer of narcotics for personal use (222-39 §1) and for persons who cannot justify the origin of their assets and are in regular contact with drug traffickers (222-39-1 §1).

All those sentences can be applied with the stipulation of a "safety period" during which the prisoner cannot benefit from any measure of temporary liberty.

Together with those standard penalties, the culprit can be sentenced to complementary and accessory penalties. The confiscation of the narcotics seized is an obligatory complementary penalty but the judge can also decide to order optional complementary penalties from a range of more than ten measures; some of these were mentioned during the discussion of incitement. The Court can order the suspension or withdrawal of a driving licence for a period of five years (222-44, 3 et 4 N.C.P.), the withdrawal of a gun licence (222-44, 2), order the prohibition on certain activities (222-44, 1), the publication and circulation of the court verdict (222-46), the loss of civil, political and family rights for a period of five years and the prohibition on being a civil servant (222-45, 1 and 2). Moreover foreigners who are convicted for trafficking offences can be forbidden to reside in France (222-47 et 222-48). This last measure demonstrates the inequity of French legislation for drug users. If prosecution is brought under trafficking legislation the foreigner can and usually is deported but if the sentence is based on drug use legislation this measure is not possible.'

This extensive list of penalties is not complete. The conviction will automatically set up accessory penalties that are not mentioned in the court verdict but are the consequence of a penal sentence. They are generally linked to a certain length of sentence for some major offences, including narcotics trafficking."' Their major area of concern is access to the professions. A conviction for trafficking involving imprisonment will lead to more than 100 prohibitions on activity. This system creates a real problem for the re-insertion for the culprit after sentence is served.

(c)    Judicial/administrative procedures followed

The procedure depends on the level of the sentence. For misdemeanour offences, the judicial procedure is generally the same as for use but with two important differences. During investigation of a crime, police can keep someone under arrest for a four-day period, whereas for drug use, the maximum is two days (article 706- 29 of the Penal Procedure Code). Undercover policing is permissible, as is telephone interception. As regards the trial the rules are the same as for drug use, but the prosecutor can decide to bring an abbreviated procedure with an immediate appearance in Court (385 P.P.C.) — which will be, in practice, more severe than the usual procedure.

For crime offences, the police have the same powers of investigation but the trial procedure is more specific — a special Court of Assizes comprising only professional magistrates must deal with the case.

Theoretically, all those procedures are in compliance with ECHR and will be at level PF.iii. In practice, things are not so clear-cut. Most of the condemnation of France by the Strasbourg Court has been made with regard to trafficking procedures. During trial, the right to question witnesses is restricted when the witness is an undercover agent. During investigation, the problems are worse, as shown by the recent decision of the European Commission of Human Rights which is proceeding against France for torture (article 3 of the Convention)." The police are allowed to use a wide variety of methods in pursuing suspects. The lack of proper controls over the poliCe hierarchy and the keenness "to get good results" in the drug war have resulted in some policemen crossing the border between legality and the violation of human rights.

(d)    Passage of this law

In contrast to the penalisation of drug use, the objective of the legislation on trafficking is clear: — to limit drug supply to medical needs. The prohibition of trafficking is not a controversial question, and most, if not all the laws since 1970 have been passed unanimously in Parliament. There are three major reasons why the 1970 legislation was transferred into the New Penal Code of 1992.

The first and most obvious reason is that the 1970 law was passed to strengthen the fight against trafficking. All subsequent modifications were introduced to fill the gaps in this text — like the specific offence of small-scale trafficking — and to respond to the development of international trafficking.

The second reason derives from international concerns. Since 1916, the French Government has responded to each new international regulation with a new piece of legislation. Each treaty is an occasion to pass a new law or a new decree. With the strengthening of international obligations, this political wish has turned to an obligation. All the texts passed since 1990 are linked to international rules like the criminalisation of money laundering, controls on precursors, the law on trafficking in international waters, etc.

The third reason explains the passage of the drug laws through Parliament: society's request for laws on drugs. Since 1990, drug addiction has been one of the major fears among the French people." When passing the law, members of Parliament stressed the fact that society was demanding a firm response to trafficking." At this point the role of the mass media should be mentioned. Although they did not create the phenomenon, they report and repeat the fears of the population and urge Parliament to provide answers. During the parliamentary debate, a news item reporting a drug problem was used to justify the new legislation and the strengthening of prohibition." This process brings with it the risk of over-reaction, such that Parliament reinforces the criminalisation regime each time as a means of proving its concern. There is also a risk for human rights. The decision regarding the seizure of traffickers' assets is a case in point (former article L.629 §3 PHC). Parliament decided that all assets in the possession of the trafficker co.'uld be seized unless he could show that the assets were not his property. This procedure went against the presumption of innocence but the legislators did not realize this when passing the law unanimously. Only in 1990, when discussing another text on drug control, they suddenly realized that the rules of democracy had been violated and decided to cancel it."

One of the objectives of the New Penal Code was to avoid such problems and to reorganize the legislation on trafficking to make it more simple, efficient and in compliance with the general rules of French criminal law. The second objective was to make a clear distinction between drug use and trafficking. One is a social problem linked to public health while the other is a criminal matter. However, the New Penal Code did not propose any major change to the former legislation. Indeed, the same criticisms on the appropriateness of criminalisation are still relevant. If we look at the statistics, the increase in the number of arrests is impressive and shows the concern of police to identify more and more users/traffickers. On the other hand if arrests are still so important after 28 years of war the efficiency of the entire system is in doubt.

(e)    International/EU Compliance

French laws on trafficking have the same advantages and disadvantages as those on drug use offences. They are in compliance with the most prohibitive interpretation of the UN and European treaties on drugs. But compliance with ECHR is not satisfactory.

B.3.2. Other criminal offences

No other criminal offences are relevant, although the controls on syringe purchase between 1972 and 1987 should be mentioned. From that date controls were suspended and were abolished two years later in order to reduce needle sharing between heroin users and thus the transmission of HIV.69

B.3.4. Any other measures

(a)    Legal measures in force

As a complement to penal procedures, customs procedures can be brought against acts of smuggling under article 414 of the Customs Code. This procedure is linked to the penal one but the sentences are different.

(b)    Intensity of measure

The penalty is three years imprisonment (NIM 10%) and a fine which is proportional to the quantity of narcotics seized, up to a maximum of double their value. If the fine is not paid, the culprit can be kept in prison for a maximum of two years.

B.4.    Other measures, applied in national law in response to international or European agreements

France has not yet ratified the Amsterdam Treaty but must do so in the course of 1999. National laws satisfy the other international and European regulations on drug control. Between 1986 and 1992, French legislators passed an average of one law per year in this field. Most of them were drafted to comply with international and European agreements. They create special offences that either complement those of drug use and trafficking or else modify existing procedures. Four areas can be mentioned: the criminalisation of money laundering, the confiscation of traffickers' assets, the control of precursor chemicals and the prosecution of trafficking in international waters.

(a)    Legal measures

Anti Laundering

Money laundering has been one of the major concerns of the international community since the beginning of the 1980s. Several expert groups have been set up and many declarations and recommendations have been passed on the subject.'" The Council of Europe played an important role in this process together with the UN. Two treaties have been implemented, UN 1988'' and the Council of Europe convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (CE 1990) passed on 8 November 1990." The areas covered by the two treaties are different. UN 1988 focuses on drug trafficking proceeds whereas CE 1990 covers the laundering of proceeds deriving from any kind of penal offence. Both have been implemented in France through four different offences, article 222- 38, 324-1 and 222-39-1 NPC and 415 of the Customs Code.'

Article 222-38 NPC punishes anyone who facilitates the deliberate concealment of the origin of assets deriving from drug trafficking, and anyone who is involved in a money laundering activity (disguising the transfer or investment of the proceeds of drug trafficking). The first offence was in fact a copy of the offence against pimping (organising or arranging prostitution) and does not seem to cover the concept of international money laundering."

Article 324-1 NPC punishes the same activities but deriving from any crime or minor penal offence. It is used when police cannot demonstrate that the offender knew the funds were derived from trafficking (article 324-4 NPC).

Article 415 of the Customs code punishes those who perform a financial operation (export, import, transfer or clearing ), between France and a foreign country using funds deriving directly or indirectly from a drugs offence.

These are intentional offences, and the prosecutor must prove that the offender was acquainted with the origin of the funds. The attempt to commit the offences is punishable as if it were the offence itself. It should be noted that by mentioning the words "drugs offence" the Customs legislation has a broader applicability than the penal text in that it allows for the prosecution of the laundering of funds linked to drug use as well as to trafficking.

Article 222-39-1, which was added to the NPC by the law of 13 May 1996, punishes those who are in contact with drug traffickers or drug users and cannot account financially for their way of living (article 222-39-1 NPC)." This broad definition permits prosecution when the police are convinced that a person is the organiser of a trafficking network or is dealing in drugs, even when no evidence of such offences can be found.

Beginning with the law of 12 July 1990," Parliament has also involved banks and financial companies in the identification of money laundering activities. The law is very broad in scope. It applies to all persons who, in the course of their duties, undertake, verify or advise on operations which have as a consequence the movement of funds, including banks, exchange offices, casinos and even notaries." These individuals must report any funds which in their view appear to derive from drug trafficking to a special financial task force (TRACFIN)." If they do so, they cannot be prosecuted with regard to the said funds for money laundering or for drug trafficking (article 9 of the law). If on the other hand they tip off the owner of the funds about the disclosure they can be fined and more specifically, may also face possible proceedings on charges of laundering or trafficking.

Confiscation of traffickers' assets

There is no specific offence included in these provisions, which aim to facilitate the implementation in France of seizure and confiscation orders made by foreign courts. The law of 31 December 1987 made provision for the confiscation of all traffickers' assets, referring to international studies and to UK and Italian legislation!' The law of 14 November 1990 changed the legislation to comply with article 5 of UN 1988.8° A request must be made by foreign authorities to a French court. Confiscation is possible if the foreign confiscation order is definitive and if the assets to be seized can also be seized under French law. Four reasons can be invoked to justify refusal of the confiscation request:

the foreign trial does not offer enough guarantees for the protection of human rights (e.g. ECHR principles);

there are serious reasons to believe that the decision is based on racist, religious, national or political discrimination;

there is a legal obstacle to the confiscation;

the activities that gave rise to the confiscation order are also being prosecuted in France. The same procedure has been implemented by law n'96-392 of 13 May 1996, chapter) (articles 9 to 16) to comply specifically with CE 1990.

Precursors control

See B.5

Trafficking in international waters

The introduction of this procedure derives from UN 1988, article 17. By exception to the Convention of Montego Bay of 12 December 1982, UN 1988 recognizes the universal right to judge the a case. Any country which arrests traffickers in international waters may proceed against them even if they — or the boat — are not nationals of the country. The provision was implemented in France by law n''96-359 of 29 April 1996. No specific offence is created, but it extends the NPC to offences committed in international waters.

(b)    Intensity of the measures

Anti Laundering

Regarding the offences under article 22-38 NPC on laundering the proceeds of drug trafficking, a distinction must be made between illicit funds deriving from a less serious offence and those from a crime offence. In the first case, laundering will be punished with a maximum prison sentence of 10 years and a fine of FF 5 000 000, with the possibility of increasing the fine up to half of the value of the goods or funds which have been laundered (NIM 30%). If the money comes from a crime offence, such as production, manufacturing, import or export by an organised group, the prison term will be the same as for the trafficking act itself, namely from 30 years to life imprisonment (NIM 100%).

Under article 324-1 NPC — which covers the laundering of funds deriving from any penal offence except drug trafficking — the penalty is 5 years of imprisonment and a fine of FF2 500 000. Aggravating circumstances apply when the offence is committed on a regular basis or when it is committed by a gang.

Under article 222-39-1 NPC — being in contact with traffickers or users — the penalty is 5 years of imprisonment and a fine of FF500 000 fine (NIM 15%). If either consumers or traffickers are under age this constitutes an aggravating circumstance and the penalties are doubled. The court can decide that a safety period must be imposed on the prison sentence.

Under article 415 Customs Code, the minimum penalty is two years' imprisonment minimum up to a maximum of 10 years (NIM 33%) with a fine in the range of one to five times the amount laundered'.
Finally, a member of a financial institution who informs a person of a disclosure to TRACFIN can be fined FF150 000".

Apart from the major penalties described above, complementary penalties are also applicable in the same way as those enforced for trafficking (see B.3.). The law of 12 July 1990 also allows disciplinary sanctions to be taken against companies that omit to declare a suspect movement of funds to TRACFIN.

Precursors control

See B.5

(c )    Judicial and administrative procedures followed

see B.3

(d)    Passage of the law

No data are available on judicial and police cooperation for confiscation or for operations in international waters. Precursor controls are administrative regulations and their implementation is easy. More can be said about anti-laundering measures.

France has punished drug money laundering since the law of 31 December 1987" but it was inefficiently applied and very few cases came to court. It appears that there were two reasons why it was impossible to take action when well-known banks were involved in the process: firstly, the difficulty of identifying the laundering activities and, having done so, the difficulty of proving that the bank knew the source of the funds. The famous example of the Noriega family was a case in point. The trafficker's family had an account in a famous French bank. No prosecution was brought because the bank management explained that they did not realise the link between Mme Noriega and the trafficker Mr Noriega."

In order to improve the law's efficiency, Parliament developed measures to prevent money laundering and involved financial institutions in the detection of the illicit movement of funds.

The system improved but it was still difficult to implement. Article L627 §3 PHC (now 222-38 NPC) mentioned only funds deriving from drug trafficking. To avoid prosecution, the culprit merely needed to say that the money came from a crime other than drug trafficking. For this reason, CE 1990 recommends extending the field of predicate crimes to all offences. This was done in France by the law of 13 May 1996."

The provisions are still recent and it is impossible to say whether they have actually improved the legal structure. Cooperation with financial institutions has certainly increased (as in other EU Member States). The number of declarations to TRACFIN doubled between 1994 and 1997.'6

(e) International/EU compliance

French legislation is in compliance with the international and EU prohibitive texts. UN 1988 has been fully implemented, as have CE 1990, the EU Directives on money laundering and on precursors and the Schengen Treaty (for drugs matters). The Directive which has not been incorporated into French legislation is that regarding driving licences and drug use." Following infringement proceedings, the Commission sent letters of formal notice to France, Spain and Portugal on this matter but Parliament is still reluctant to pass a law on the subject." Parliament has explained that drug-testing kits are not efficient enough to be able to establish drug consumption." For the time being, the Ministry of Justice proposes to prosecute persons who drive under the obvious influence of drugs under article 121-3 NPC. These general provisions on the definition of penal offences punish anyone who deliberately causes the risk of injury or death to others.

Regarding free movement and Directive 64/221, French law appears to be in compliance with ECJ decisions. Drug use does not justify deportation but trafficking, which is seen as affecting one of the fundamental interests of society, does. French law complies with ECJ R v Jacob° Escauriara. The future verdict of the Court in the case of Donatella Calfa, C-348/96 will perhaps be of more interest. On 17 February 1998 the Advocate General suggest to the Court that it should rule as follows: "On a proper construction, Articles 59 and 56 of the EC Treaty, and Article 3 of Directive 64/221/EEC, preclude a provision of national law which requires the court to order the expulsion for life of a national of another Member State for reasons of public order or public safety on the sole grounds that, while a tourist, that national committed in the host State the offence of possession of narcotics for personal use, when no penalty of similar severity is imposed on a national of the host State committing the same offence". A French national arrested in a country where cannabis use, for example, is not prohibited, will not be deported for punishment. This can be an obstacle to some actions developed by Member States police forces to fight against "narco-tourism" (see next paragraph).

With the exception of the Directive on driving licences, all the other recommendations of the Commission, the EU Council Regulations and the Joint Actions on drug control are incorporated into French legislation, even if they have not led to new national legislation. Most, if not all of them promote the harmonisation of MS legislation to strengthen prohibition, in which field France almost certainly has the most restrictive policy. Without making a list of all the provisions there are three main areas where EU recommendations are incorporated into French law and policy: the prevention of addiction," the collaboration between MS police forces, especially with actions against "narco-tourism'"' and the fight against 'doping' in sport.'
In conclusion, it should be pointed out that the prohibitive approach of the EU Council and the Commission is not shared by the EU Parliament, which has strongly criticised this type of policy and promotes the development of harm reduction and the decriminalisation of drug use."'

B.S.    EC measures having direct effects

The implementation of the "Third Pillar" of the Treaty of Maastricht has not caused the introduction of any specific law or regulation. The Joint Actions are incorporated through the current legal framework (see B.4.). The only new legislation is in the field of precursor controls. The substances listed in article 12 of UN 1988 which are not drugs but which can be used to produce them are now under control. This control system looks like the one organised in the beginning of the century for ... narcotics.' The aim is to make the production of drugs more difficult by following all the movements of the substances needed for their manufacture. As these precursors are not in themselves prohibited substances, their control is in contradiction with the EU rule of free trade of goods inside the Community. But article 36 of the Treaty of Rome admits the limitation of such freedom for social or health reasons. The EU Council has passed Regulations and Directives to adapt the international control of precursors to EU standards and to organize the trade of those substances within the EU."5 The French law of 19 June 1996 organized the production and trade of precursors inside and outside the EU by a system of agreements and declarations. Some non-penal actions have also had a direct impact in France such as the creation of European Monitoring Centre for Drugs and Drug Addiction (EMCDDA)."

 

1 Journal Officiel 0.0.) 14 juillet 1916, p. 6254 ;

2 'Caballero, F., 1989, Droit de la drogue, précis Dalloz, n°1 et s.

3 Decree of 29 December 1988, amended by decree n°92-963 of 7 September 1992. Those texts have been included in the PHC, articles R.5171 and R.5179.

4 See signature of the regulation of 22 February 1990, J.0., 7 juin 1990, p. 6678.

5 Cass. crim. 13 March 1995, Bull. crim., n° 101 ; Cass. crim., 14 December 1995, Lexis database. '

6 Cass. crim. 12 December 1984, Bull. crim., n°402 ; Cass crim. 9 March 1992, ibid., n°103. See also Cass. crim. 5 February 1990, Droit Pénal, juin 1990, n°202, p. 9 with comments J.-H. Robert.

7 Cass. crim, 28 November 1983, Bull. crim. n°319 "

8 Cass. crim. 27 February 1995, Lexis database.

9 Cass. crim. 11 February 1985, Lexis database.

10 Circulaire du Ministère de la Justice n° 20-C, 28 april 1995, Bulletin Officiel du Ministère de la Justice (B.O.M.J.), n°58, p. 160. Previously, the regulation of 12 May 1987 invited the prosecutor to act against aiklists-and-to adapt the penal sanction to allow treatment during imprisonement.

11 See Circulaire du Ministère de la Justice, B87-01, 12 May 1987 (B.O.M.J., n°26, p. 9), which mentions "some important divergence in the policy of the prosecutors — especially regarding narcotics users", and recently, the regulation of 28 April 1995, which points out "major disparities over national territory in the matter of detoxification ordered by prosecutors". See also regulation of 9 July 1996 0.0. 7 juillet 1996, p.10392)

12 Rapport Parlementaire sur les sectes, J.O.Ass. Nat., 22 November 1995

13 Setbon, M., 1998 L'injonction thérapeutique — évaluation du dispositif légal de prise en charge sanitaire des usagers de drogues interpellés, rapport de recherche CNRS — GAPP, Sidaction-Ensemble contre le sida

14 Timbart, O., Les infractions la législation sur les stupéfiants, Etudes et statistiques Justice, vol. 4, Ministère de la Justice, sous-direction de la statistique, des Etudes et de la documentation, 1995

15 Timbart, O., op. cit., board p. 85. This evaluation is probably lower than reality, as it does not take in account the prosecutions against users based on trafficking offences.

16 On a proposal for the evaluation of the narcotic law see, Lert, F., and Fombonne, E., La toxicomanie: vers une évaluation de ses traitements, Paris, INSERM — La documentation française, coll. analyses et prospective.

17 Bernat de Celis, J., 1992, Fallait-il créer un délit d'usage illicite des stupéfiants? — Une étude de sociologie législative, Déviance et contrôle social, CESD1P, n°54

18 Rapport Mazeaud, n° 1155, J.O. Ass. Nat., documents, 27 mai 1970

19 "On peut s'interroger sur la justification d'une telle mesure. L'exposé des motifs du texte du gouvernement l'explique de la façon suivante: "à une époque où le droit la santé et aux soins est progressivement reconnu l'individu — en particulier par la généralisation de la sécurité sociale et de l'aide sociale — il parait normal, en contrepartie, que la société puisse imposer certaines limites l'utilisation que chacun peut faire de son propre corps", Rapport supplémentaire Mazeaud n° 1330, J.O. Ass. Nat., documents, 26 juin 1970.

20 Avis Marcilhacy, n°35, J.O. Sénat, documents, 27 octobre 1970 and J.O. Sénat, débats, 3 novembre 1970, p. 1715.

21 J.O. Sénat, débats, 3 novembre 1970, p. 1711.

22 Couvrat, P., Livre II: les infractions contre les personnnes dans le nouveau code pénal, R.S.C., 1993, p. 478.

23 See the official comment on the NPC, regulation of 14 May 1993, §171, 3°.

24 Comparison of data over a longer period is not possible because of a change in the statistics, but we can compare with other offences. Theft, for example, increased by 149.14% during this period and violent crimes by 67.22% (Ministère de Plntérieur, 1984, Aspects de la criminalité en France en 1983 constatée par les service de police et de gendarmerie d'après les statistiques de police judiciaire", Paris, La Documentation Française, p. 10).

25 ibid. for 1994.

26 Timbart, O., op. cit.

27 European Monitoring Centre for Drugs and Drug Addiction, Annual Report on the State of the Drugs Problem in the European Union, 1996 (www.emcdda.org/)

28 ECHR, Kruslin v. France and Huvig v. France, 24 April 1990, A , n° 176 A et B; Pradel, J., 1997, Droit penal, t. 2, Procedure pénale, 9° éd., Cujas, n° 313 et s. p. 359.

29 ECHR, Kokkinakis v. Grece, 25 May 1993, A, n°260 A. This condition has also been asserted by the French Constitutionnal Court which requests Parliament to define offences in clear and accurate terms, C. constit., decision n° 80-127 DC, 19-20 janvier 1981 and decision n° 84-183 DC, 18 janvier 1985.

30 ECHR, Malone v. U.K., 2 August 1984, A, n° 82.

'31 Cass. crim. 22 june 1994, Lexis database.

32 ECHR, Bizotto v. Greece, 15 November 1996 (76/1995/582/668).

33 Delmas-Marty, M., 1991, Quelles politiques européennes?, in Individu sous n luence, sous la direction d'A. EHRENBERG, coll. Esprit, p. 319 — 343.

34 Cass. 2° civ., 16 March 1994, D. 94, I.R., p. 96.

35 Conte, P. and Maistre du Chambon, P., 1998, Droit pénal général, Armand Colin ed, third edition, Paris, 1998, p. 188 to 194. See also, J. Pradel, Droit pénal général, Cujas ed, p. 543 to 545.

36 Caballero, F., op.cit., p. 530.

37 The New Penal Code no longer provides for the aggravated circumstance of making consumption easier for a minor.

38 Cass. crim. 27 February 1997, Bull. crim., n°8.

39 Cass. crim. 6 December 1983, Lexis database; C. A. Toulouse, 2 December 1982, Gaz. Pal. 1983.1.Somm.47 and Cass. crim. 10 January 1984, D. 1985. IR.464 comments by Penneau.

40 Cass. crim. 30 October 1995, Gaz. Pal., 27-28 mars 1996.

41 The problem occurred, for example, with the Yve St Laurent perfume called "Opium".

42 Cass. crim. 9 January 1974, Bull. crim. n°15.

43 On this question see Caballero, op. cit., n°431. " .

44 vJ.O. Ass. Nat., débats, ler juillet 1970, p. 3325.

45 See Libération, 2 septembre 1998, p. 1 and 40. 

46 Article 3, §1 c, iii de la Convention

47 Timbart, O., op. cit.

48 Circulaire 78-08bis, 17 mai 1978, B.O.M.J. 1978, 8bis, p. 1.

49 Circulaire CRIM 84-15, 17 septembre 1984, B.O.M.J., n°16, p. 102.

50' Circulaire CAB 87-01/12-05-87, 12 mai 1987,

51 Circulaire CR1M 95-24, G/21-12-95 21 décembre 1995.

52 See the synthesis of all the sentences pronounced by Courts in 1996 in Timbart, O., op. cit.

53 Circulaire 73-11, 30 mars 1973, B.O.M. J., 1973, 11, p. 3.

54The regulation of 12 May 1987 requested officers to prosecute for traffic more than for use (Regulation CAB 87-01/12-05-87, lmai 1987, B.O.M.J., n°26, avril-juin 1987, p. 13).

55 Cass. crim. 16 May 1983, Lexis database;

56 Cass. crim. 17 October 1994, Bull. crim. n°334.

57 Barre, M.-D., 1994, Toxicomanie et délinquance — du bon usage de l'usager de produits illicites, Ministère de la Justice-C.N.R.S., C.E.S.D.I.P., coll. études et données pénales, n°70, p. 177 et p. 145, note 1.

58 See also in France the proposals of the "Rapport Pelletier", Rapport de la mission d'études sur l'ensemble des problèmes de la drogue, La documentions française, 1978

59 Circulaire 73-11, 30 mars 1973, B.O.M. J., 1973, 11, p. 3.

60Cass. crim., 24 May 1978, Lexis database, prosecution against someone using cannabis in group for importation as the drug was received from Holland.

61 circulaire of 14 May 1993, §171.

62 Circulaire CRIM 95-24, G/2I-12-95, 21 decembre 1995, B.O.M.J., 1995, n°60, p. 103.

63 See Bisiou, Y., 1990, Peines accessoires et interdictions professionnelles — Rapport définitif, Ministère de la Justice — DACG

64 See decision of 25 March 1998, Le Monde, 26 mars 1998, p. 1. After his arrest and before any court decision, a suspected trafficker was bitten and even raped by police during four days to obtain his confession.

65 See Ocqueteau, F., Perez-Diaz, C. in Déviance et société 1990, vol. XIV, n° 3, p. 270 and also the study carried by the Institut des Hautes Etudes en Séturité Intérieure of the Ministry of Interior, Le Monde, 4 juillet 1990, p. 9.

66 For an example, see the debate before the passage of the law of 31 December 1987, J.O. Ass. Nat., débats, 8 octobre 1987, p. 4058 and 4064.

67 ibid., p. 4043.

68 Law n°90-1010, 14 November 1990, art. 9 et 12

69 Decree n°72-200, 13 March 1972 (J.O., 14 mars 1972, p. 2679), postponed by decree n°87-328, 13 May 1987 (J.0., 16 mai 1987, p. 5399), decree n° 88-894, 24 August 1988 (J.0., 27 août 1988, p. 10909) and cancelled by decree n° 89-560, 11 August 1989 0.0., 12 août 1989, p. 10205).

70 See the 1984 study on money laundering from the Pompidou Group of the Council of Europe, the 1990 report and recommendations of the Financial Action Task Force (FATF) to the French Ministry of Finance, the 12 December 1988 Declaration of Basle (Switzerland) from the Bank for International Settlemements and the declaration of the Paris G7 summit in July 1989.

71' France ratified UN 1988 on 13 February 1989 and published it by decree n°91-271, 8 March 1991.

72 This text was ratified on 5 July 1991 and published by decree n°97-183, 25 February 1997 (10., 4 mars 1997).

73 Law n°88-1149, 23 December 1988 modifying article 415 of the Code of Customs.

74 For a comparison of the twori offences, article 335-5 and 222-38 NPC, see the rapport Debré, J.0. Ass. Nat., doc. n° 948, 1987-1988, p. 45.

75 An attempt to commit the offence is not punishable. The penalty is 5 years' imprisonment and a FF500 000 fine. Imprisonment is doubled when the traffickers or users are under-age, and penalties can be accompanied by a safety period.

76  J.0., 14 juillet 1990

77 Cass. crim 7 December 1995, bull. crim. 375.

78 Law n°90-614, 12 July 1990, J.O., 14 July 1990, p. 8329. On TRACFIN, see decree n° 91-160, 13 February 1991 (J.O., 14 fevrier 1991, p. 2242) and the regulation of the Ministry ofJustice, Crim.90 n° 10, 28 September 1990.

79 See regulation CRIM 88-3-F.3:1/2/88, p. 10. The offence was in article L629 PHC and was rewritten by the NPC, article 222-44.

80 Law n°90-1010, 14 November 1990, J.0., 16 November 1990, p. 14055.

81 Customs offences have a specific regime. The abolition of minimum sentences for penal offences with the publication of the NPC is not applicable to Customs otTences.

82 Article 10 of law of 12 July 1990.

83' Law n° 87-1157, 31 December 1987, J.0. 5 January 1988, p. 159. The offence is now in article 222-38 NPC. The penalty is 10 years imprisonment and a fine of FF5 000 000 when laundering proceeds derive from a drug trafficking misdemeanour offence and it is the same penalty as for the drug crime offence of trafficking.

84" See Le Monde, 3 February 1990, p. 11.

85 Law n°96-392, 13 May I 996, J.0., 14 mai 1996, p. 7208. See also the regulation from the Ministry of Justice, CRIM 96-11 G/I 0-06-96, B.O.M.J., 10 juin 1996, p. 53.

86"" There were 684 declarations in 1994, 866 in 1995, 902 in 1996 and 1213 in 1997. EU Commission, DG15, Internal Market and Financial Services, Single Market News, Dossier special n°14, October 1998, • on the web site of D615,
europa.eu.int/com m/dg I 5/en/smn/smn I 4/s 1 4smn I 9.htm.

87 Council Directive 91 /439/EEC of 29 July 1991 on driving licences, 0.J., L 237, 24/08/91, amend. Council Directive 94/72/EC of 19 December 1994, (O. J., L 337, 24/12/94), amend. Council Directive 96/47/EC of 23 July 1996, (O. J., L 235, 17/09/96), amend. Council Directive 97/26/EC of 2 June 1997, (O. J., L 150, 07/06/97).

88 See EU Commission, Bulletin EU6-97, http://europa.eu.int/abc/doc/offibull/en/9706/p108001.htm.

89 J.0. Ass. Nat., documents, rapport n°2659, 21 mars 1996.

90 Council declaration of 13 December 1993 on European Drug Prevention Week (0.J., C 015, 18/01/1994, p. 7) and its evaluation by the Commission, 29 February 1996 (COM (96) 71.final); see also Resolution of the Council and the Ministers for Health of the Member States meeting within the Council of 16 May 1989 concerning a European network of health data on drug abuse (0.J. C 185, 22/07/1989 p.1), and Decision No 102/97/EC of the European Parliament and of the Council of 16 December 1996 adopting a programme of Community action on the prevention of drug dependence within the framework for action in the field of public health (1996-2000) (0.J., L 019, 22/01/1997 p. 25 — 31).

91 Council Conclusions of the 29 November 1996, (0.J. C 375, 12/12/1996) and Joint action 96/750/JHA, 17 December 1996 (01 L 342, 31/12/1996). On the extension of the J.A. to health and social risks linked to drug use, see also, Council Conclusions of 24 July 1997 on the health aspects of the drugs problem (0.J., C 241, 07/08/1997 p. 7).

92 Resolution of the Council and of the representatives of the Governments of the Member States, meeting within the Council of 3 December 1990 on Community action to combat the use of drugs, including the abuse of medicinal products, particularly in sport (0.J., C 329 , 31/12/1990, p.4-5), Declaration by the Council and the Ministers for Health of the Member States, meeting within the Council of 4 June 1991 on action to combat the use of drugs, including the abuse of medicinal products, in sport (0.J., C 170, 29/06/1991 p.1 ), Resolution of the Council and of the representatives of the Governments of the Member States, meeting within the Council on a code of conduct against doping in sport (0.J., C 044, 19/02/1992, p.I-2).

93 See the report to the EU Parliament on the harmonization of Members States policies on drugs, SCD-98/01 —A/0135, (H. ANCONA, PE doc A4-359/97/13) and the Resolution on the fight against drugs, November 1995, A4-0136/95, § E and 6.

94 See Bisiou, Y., 1994, Les monopoles des stupéfiants, thèse dac., Université de Nanterre, and 1991, D 'un produit l'autre: propos de deux siècles de contrôle des drogues, Revue de Sciences Criminelles, n°2, p. 279.

95 " Regarding regulations, see: Council Regulation (EEC) No 3677/90 laying down measures to be taken to discourage the diversion of certain substances to the illicit manufacture of narcotic drugs and psychotropic substances (0.J., L 357, 20/12/1990, p. 1-5), amend. Council Regulation (EEC) No 900/92 of 31 March 1992 (0.J., L 096, 10/04/1992 p. 1-6), amend. Commission Regulation (EEC) No 3769/92 of 21 December 1992 (0.J., L 383, 29/12/1992, p. 17-29), amend. Commission Regulation (EC) No 2093/97 of 24 October 1997 (0.J., L 292 , 25/10/1997, p. 11-13).
Regarding Directives, see: Council Directive 92/109/EEC of 14 December 1992 on the manufacture and the placing on the market of certain substances used in the illicit manufacture of narcotic drugs and psychotropic substances (0.J., L 370, 19/12/1992, p.76-82), amend. Commission Directive 93/46/EEC of 22 June 1993 (0.J., L 159, 01/07/1993, p. 134-136), implemented by Commission Regulation (EC) No 1485/96 of 26 July 1996 laying down detailed rules for the application of Council Directive 92/109/EEC (0.J., L 188, 27/07/1996, p. 28-31).

96 Council Regulation (EEC) No 302/93 of 8 February 1993 on the establishment of a European Monitoring Centre t'or Drugs and Drug Addiction (0.J. L 036, 12/02/1993, p. 1-8), amend. Council Regulation (EC) No 3294/94 of 22 December 1994 (0.J., L 341, 30/12/1994, p. 7). For the development of research on drug addiction, see also Resolution of the Council and the Ministers for Health, meeting within the Council of 11 November 1991 on the treatment and rehabilitation of drug addicts serving sentences for criminal offences (0.J., C 304, 23/11/1991, p. 7).

 

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