The sentences that offenders receive for drug law violations across the European Union are examined for the first time in this ‘Selected issue’. By analysing the most recent year’s statistics, this report attempts to answer the question: What is the most likely outcome for an offender after being stopped by police for a drug law offence of use or personal possession, or supply or trafficking? 

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An online annex provides links to results by country (pdf).

Conclusions

Across Europe, the three most common ways of punishing a person for a drug possession offence are warning, fine and suspended prison sentence. With the exception of a few countries, community work orders are very rarely used to sanction this offence. Those convicted of supply offences are likely to receive a prison sentence, though many of these are suspended prison sentences, and few receive the long sentences that are often brought up in the public debate. However, there are considerable gaps in the information available. A substantial proportion of offenders will have their cases discontinued at some stage in the criminal justice system, though it is often not clear how this happens. Even if possession for personal use is not always a criminal offence, drug trafficking is, and relevant court statistics should be available in all countries rather than only the four-fifths that submitted them for this report.

The differences in penalties for personal use and supply offences, which were obvious in the majority of countries, may perhaps reflect differences between countries about how strongly they draw the line between users as individuals needing treatment or counselling, and traffickers as criminals. Examining absolute numbers can give an impression of the proportion of users who are processed through to a court sentence, and in many countries these figures reflect the same division. An individual country’s criminal justice system recognises some people as sick, and thus tries to divert them to treatment, while it follows one of its primary aims of deterrence and channels others towards punishment.

While it is widely felt that users should not go to prison for offences against drug laws, some still do: usually a few percent of those who appear before a court. Further research would be needed to understand why; whether these are addicts who have no money for a fine, whether they are in breach of probation, whether they are recidivists for whom treatment has not been successful. Considering the few recidivism statistics given for drug law offences — up to 60 % overall, and around 20 % for supply offences — it becomes clear why at least some users receive immediate prison sentences. Another possibility in some countries is that these sentences are exposed by the counting rules. They could be given for a more serious offence (for example, possession of a firearm) that cannot be seen from the statistics.

There are national variations in common choices of penalty. Some countries’ judiciaries prefer to give suspended imprisonment sentences to users, while others usually issue monetary fines. Community work, in its many forms including treatment orders or limitations of liberty, is rarely used as a punishment for drug offenders — with the exceptions of Ireland, Hungary, the Netherlands, Poland and the United Kingdom. There are different attitudes in the Member States towards the use of short, immediate prison sentences. For example, prosecutors in Denmark request a few days in prison for first offenders guilty of sale, while other countries such as the Czech Republic and Poland do not permit such short sentences. Different attitudes to fines are also apparent. In Finland, if an offender cannot pay a fine it can be converted into a prison sentence, while Denmark and Portugal have guidelines that discourage or prohibit giving fines to heroin addicts. The reason why these types of sanctions vary in use is beyond the scope of this report, but may be explored by criminological research.

The sentences given for supply offences seem to be short in comparison to the maximum sentences available under law. However, there is little to suggest that the judiciary is generally lenient when sentencing major cases. It appears more likely that the findings of this report provide further evidence for the hypotheses that in Europe ‘drug barons’ or ‘kingpins’ are few, and more difficult to convict than smaller, more visible dealers. It seems that for each ‘Mr Big’ convicted there are many ‘Mr Mediocres’.

Based on the limited information available, the type and size of the sentence is clearly affected by the type of drug involved in the offence, even in those countries where all drugs are viewed equally under the law. This suggests that the judiciaries perceive differences in the levels of harm or seriousness associated with the various drugs.

Given that there is unanimous political support for treatment rather than punishment, it is strange that referrals to treatment through the legal system are barely visible in the data provided. According to the EMCDDA treatment demand indicator, 25 % of the new clients who entered outpatient treatment in 2007 were referred from courts, probation services or police. Yet, such numbers are generally unaccounted for in the criminal justice statistics. While it is likely that they may sometimes be hidden in statistics for ‘conditions or obligations’ that accompany a warning, or even community work orders in one or two countries, it appears that there is little national will to record them within these systems. The result is that most countries are unable to determine the size of a high-profile group of offenders who avoid any punishment for what is usually a criminal offence. Crucially for policy planning purposes, it will be impossible to calculate the success rates for treatment interventions if the total number of people entering treatment is not counted — there will be no ‘increased effectiveness’ this way.