Country report: Denmark
Impact assessment on a new legislative instrument replacing the Council Framework Decision 2004/757/JHA on illicit drug trafficking
It is proposed that the country reports take the form provided below. Basically, the reports shall consist of two parts. The first seeks to give a picture of the 27 national legislations and their application in the field of drug trafficking. For this purpose questions about the situation in general, the transposition of Framework Decision 2004/757/JHA into national legislation, the application of national legislation transposing the Framework Decision and the relationship between the implementation of the Framework Decision and other legislative measures against drug trafficking have to be answered. Comparisons to the legal situation before the implementation of Framework Decision 2004/757/JHA are required. The second part relates to future perspectives. Here, the overall question is whether the existing legal provisions are sufficient to effectively prosecute drug trafficking offences and if not, which provisions a new EU instrument should contain. The questions should be prefaced by a summary of completed fieldwork and a list of documentary sources. Please give references to the text in footnote format. The following template notes which questions (from the questionnaire) relate to each section of the report.
National report for Denmark by Jørn Vestergaard (JV)[1]
Fieldwork
Information about the interviewees and stakeholders (name, function, employer) have to be provided to the maximum extent permitted, bearing in mind any request for anonymity.
Deputy Director, statsadvokat Jesper Hjortenberg, Eurojust.
Head of International Division, kontorchef Morten N. Jakobsen, Ministry of Justice.
Public Prosecutor, politiadvokat Jens Rasmussen, Copenhagen Police.
Attorney of Law, advokat Henrik Stagetorn, chairman of the Danish Association of Defence Lawyers.
Documentary sources
Legislation, rules, case law, academic publications, statistics, etc. have to be listed. In addition, please give references to the text in footnote format.
Part I: National legislation on drug trafficking and their application in practice
A. Drug trafficking situation in the Member State:
· Q A.1. To what extent is illicit drug trafficking a serious problem in your Member State? Please provide evidence from interviewees, media, statistics, research results and other material illustrating the situation.
JV:
In Denmark, drug offences may be charged under the Euphoriant Substances Act or under the Penal Code, depending mainly on the quantity and type of drug involved. Drug offences are, basically, criminalized under the Euphoriant Substances Act. Serious drug offences are dealt under the Penal Code Section 191, originally enacted in 1969.[2]
According to provisions under the Euphoriant Substances Act, acts involving »import, export, sale, purchase, delivery, receipt, production, processing or possession« of drugs, are defined as criminal offences. The penalty under the Euphoriant Substances Act is a fine or an imprisonment sentence of up to 2 years. Illegal possession for own use ordinarily involves a fine, which increases, depending on the type and quantity of drugs. In some cases, possession of dangerous drugs for the purpose of own use may also result in short-term imprisonment. In 1996, the Euphoriant Substances Act was amended in order to increase the penalty for professional drug pushers who, until then, had avoided serious sanctions by carrying very small quantities of drugs at the time. In 2004, the distribution of drugs in restaurants, discotheques or similar places frequented by children or young people was stipulated to be a significantly aggravating circumstance, that should normally be punished with an unconditional imprisonment sentence. Section 191 of the Penal Code covers supply of illegal drugs to a considerable number of persons, either in return for a substantial payment, or under other particularly aggravating circumstances. According to recent jurisprudence, the requirement is that the perpetration involves trafficking, or an intention to traffic, at least 25 g of heroin or cocaine, 50 g of amphetamine or 10 kg of cannabis. Since 2004, the ordinary sentencing maximum under Section 191 is imprisonment for up to 10 years. Penalties often reaches or borders with the maximum. An enhanced maximum of imprisonment up to 16 years is authorised if the supply relates to a considerable quantity of a particularly dangerous or harmful drug, or if the trafficking of such substances has otherwise been of a particularly dangerous character. If the perpetrator is found guilty of a multitude of counts, the penalty may exceed the ordinarily prescribes maximum by up to half, however not up to more than imprisonment for 20 years, cf. Section 88(1) of the Penal Code.[3]
Illegal drug use is widespread in Denmark, in particular as far as the use of cannabis and, to some degree cocaine, is concerned.[4] Consequently, drug trafficking is officially considered to be a problem of major concern. According to a 2008 survey among the general juvenile and adult population, lifetime prevalence of cannabis was reported by 38.6 % of the sample, last year prevalence by 5.5 % while last month prevalence by 2.2 %. Among 16–34–year olds, 48 % reported having tried cannabis at least once, 10.5 % reported amphetamines use and 9.5 % cocaine use at least once in their life. Last year prevalence of cannabis was reported by 5.5 % of those aged 16–64, 1.4 % reported cocaine and 1.2 %, amphetamines.
Drug-related deaths are registered in the National Board of Health’s Cause of Deaths register. According to the register in 2007, there were a total of 211 drug-related deaths in a total population of approx. 5.5 mio.[5]
Morocco is the primary producing country of cannabis which reaches the Danish market, with Spain, Portugal and the Netherlands as main transit countries. The vast majority of heroin is reported as originating in south-west Asia and reaches the national market via the traditional routes, through Iran and Turkey. Amphetamines and ecstasy seized in Denmark are produced in the Netherlands and Belgium and, to a minor extent, in Poland and the Baltics. Cocaine seized in Denmark is produced in South America and distributed via the Netherlands and Spain. The Police Drug Statistics indicate that the number of seizures of most drugs have increased in recent years. Police statistics show that the quantity of amphetamine seized was 120 kg in 2008.[6]
The so-called freetown of Christiania is widely known for its sale of cannabis on Pusherstreet.[7]
B. Transposition of Framework Decision 2004/757/JHA:
1. Implementation process:
· Q B.1. When was the Framework Decision 2004/757/JHA laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking transposed into your national legislation?
a. Was the legislation in your country amended to implement the Framework Decision?
JV: Yes, by Act 218 of 31. January 2004. The Act involved the already mentioned enhancements of the ordinary sentencing maximum in Section 191 of the Penal Code to imprisonment up to 10 years, and of the enhanced maximum in the most serious cases to imprisonment up to 16 years.
b. Was the FD transposed within the set time limit?
JV: Yes.
· Q B.2. Were any difficulties encountered during the transposition process?
JV: No.
2. Definition of “drugs”:
· Q B.3. Does the definition of “drugs” in your legislation correspond with the definition of Article1 FD?
JV: Yes.
3. Offences linked to trafficking in illicit drugs and precursors:
· Q B.4. Have the “crimes linked to trafficking in drugs” defined in Article2 FD completely been transposed in your MS?
JV: Yes, in the sense that all types of offences defined in Article 2 FD were also previously criminalized, and therefore it was not considered necessary to amend the provisions of neither the Euphoriant Substances Act nor the Penal Code. As mentioned above, acts involving import, export, sale, purchase, delivery, receipt, production, processing or possession of drugs, are defined as criminal offences.
· Q B.5. In what ways have the offences linked to “precursor trafficking” according to Article 2 (1) (d) FD been implemented into your legislation? What are the definitions of the respective offences incorporated by your Member State?
JV: All types of offences defined in Article 2(1)(d) FD, cf. Article 4(4) FD were also previously criminalized, and therefore it was not considered necessary to amend the provisions of neither the Euphoriant Substances Act nor the Penal Code. According to Article 2(1)(d), the requirement is that the precursors in question are suited for manufacturing of large quantities of illicit drugs or particularly dangerous drugs. Consequently, the acts in question are covered by the broad provision in Section 191 of the Penal Code, combined eventually with the general provisions on criminal attempt and/or Participation in Sections 21 and 23 of the Penal Code, see further below.[8] The Commission has expressed doubts about the compliance of this system, particularly with respect to Article 3.[9] The Commission's worries seem unsubstantiated.
4. Incitement, aiding and abetting and attempt:
· Q B.6. Is Article 3 FD (incitement, aiding and abetting and attempt) completely implemented into your legislation? Please describe briefly under which conditions incitement, aiding and abetting on the one hand and attempt of the offences referred to in Article 2 FD on the other hand are punishable.
JV: The general provisions on criminal attempt and criminal participation, respectively, are very broad and wide-reaching. They cover almost any kind of preparation and participation.
5. Jurisdiction:
· Q B.11. Does your legislation provide for jurisdiction in all cases foreseen in Article 8 FD?
JV: Yes.
a. In which cases the Member State has jurisdiction in relation to legal persons concerning drug trafficking offences?
JV: Under Danish law, Denmark has jurisdiction in relation to legal persons in all types of cases where there is jurisdiction in relation to individuals.
b. Does the Member State have jurisdiction, if the offence has been committed outside its territory? If yes, under which conditions (the ones foreseen in Article 8 (1) (b) and (c) and/or others)?
JV: Yes. Section 7 of the Penal Code prescribes jurisdiction for nationals and habitual residents depending on double criminality.[10]
c. In the case of extra-territorial competence, does the Member State only have jurisdiction for nationals or also for habitual residents (if an habitual resident has committed drug trafficking offences outside the territory)?
JV: Yes, see above.
· Q.B.12. Does your national legislation make a distinction between possession/personal use (consumption) of drugs and trafficking of drugs? If yes, how (what are the relevant factors for the distinction between possession/personal use of drugs and trafficking of drugs)? Is personal consumption of drugs a criminal offence in your country? Are cases of drug trafficking to finance the personal addiction (street trafficking) treated in a different way?
JV: As explained above acts involving import, export, sale, purchase, delivery, receipt, production, processing or possession of drugs, are defined as criminal offences. Thus, both acts of possession and trafficking are explicitly stipulated as criminal offences. However, they are naturally treated differently. Consumption is not in itself a criminal offence. Previously, the enforcement of the prohibition regarding possession was very lenient and, typically, only involved confiscation and an administrative police caution. According to a chance of the law in 2004, possession of illicit drugs shall normally be fined, also in cases of first timers.
6. Sanctions:
a. Penalties (and other sanctions):
· Q B.7. Which penalties (and other sanctions) are provided for offences linked to trafficking in drugs? Which penalties are provided for offences linked to precursor trafficking? Do they comply with the penalties provided for in Article 4 FD? Please describe exactly which penalties are foreseen for the drug and precursor trafficking offences.
JV: Section 191 of the Penal Code covers supply of illegal drugs to a considerable number of persons, either in return for a substantial payment, or under other particularly aggravating circumstances. Since 2004, the ordinary sentencing maximum under Section 191 is imprisonment for up to 10 years. Penalties often reaches or borders with the maximum. An enhanced maximum of imprisonment up to 16 years is authorised if the supply relates to a considerable quantity of a particularly dangerous or harmful drug, or if the trafficking of such substances has otherwise been of a particularly dangerous character. If the perpetrator is found guilty of a multitude of counts, the penalty may exceed the ordinarily prescribes maximum by up to half, however not up to more than imprisonment for 20 years, cf. Section 88(1) of the Penal Code as mentioned above.
JV: In 1996, the Euphoriant Substances Act was amended in order to increase the penalty for professional drug pushers who, until then, had avoided serious sanctions by carrying very small quantities of drugs at the time. In 2004, the distribution of drugs in restaurants, discotheques or similar places frequented by children or young people was stipulated to be a significantly aggravating circumstance, that should normally be punished with an unconditional imprisonment sentence.
JV: As mentioned above, all types of offences defined in Article 2(1)(d) FD, cf. Article 4(4) FD were also previously criminalized, and therefore it was not considered necessary to amend the provisions of neither the Euphoriant Substances Act nor the Penal Code. According to Article 2(1)(d), the requirement is that the precursors in question are suited for manufacturing of large quantities of illicit drugs or particularly dangerous drugs. Consequently, the acts in question are covered by the broad provision in Section 191 of the Penal Code, combined eventually with the general provisions on criminal attempt and/or Participation in Sections 21 and 23 of the Penal Code. In other words, the penalties prescribed in relation to precursors are the same as those for other types of drug offences.
a. Are the elements of “quantity” and “harm to health” provided for as aggravating circumstances? What sentences are provided for?
JV: Yes, please see answers above.[11]
b. Is there legislation regarding trafficking in illicit drugs and precursors, where the offence is committed within the framework of a criminal organisation (Article 4 (3) and (4))? What sentences are provided for?
JV: As mentioned above, the sentencing maximum in Article 191 of the Penal Code is enhanced from imprisonment up to 10 years to a maximum of imprisonment up to 16 years if trafficking relates to a considerable quantity of a particularly dangerous or harmful drug, or if the trafficking of such substances has otherwise been of a particularly dangerous character. If the perpetrator is found guilty of a multitude of counts, the penalty may exceed the ordinarily prescribes maximum by up to half, however not up to more than imprisonment for 20 years, cf. Section 88(1) of the Penal Code