Dutch government to ban tourists from cannabis shops?

Tuesday, June 28, 2011

coffeeshoplicenseUnder legislation spearheaded by the conservative government, only Dutch residents will be allowed to enter cannabis-selling coffeeshops. The Dutch government announced on Friday, 27 May, that it will push ahead with plans requiring those purchasing marijuana in the country’s coffeeshops to first obtain an official pass — a move designed to curtail tourists from buying the drug. The announcement hit the international headlines.

"In order to tackle public disorder and criminality associated with coffeeshops and drug trafficking, the open-door policy of coffeeshops will end," the Dutch health and justice ministers wrote in a letter to the parliament. Under the new rules, only Dutch adults will be able to sign up as members of cannabis shops. They will have to sign up for at least a year's membership and each shop would be expected to have only up to 1,500 members. Persons who do not hold Dutch citizenship will not have access. The government said it would introduce the ban on foreigners and impose restrictions on Dutch customers by the end of the year.

Opposition widespread

Opposition to the measures is widespread. Many experts say the government's plans to introduce the so-called cannabis passes for coffeeshops will encourage illegal street dealing again. They say the proposed measures are not viable and counterproductive. The city of Amsterdam, where 220 of the approximately 660 coffeeshops in the country are located, is opposed. "We are concerned about the insecurity and public disorder which may arise when cannabis will be widely traded on the street," said the spokeswoman for the city. While some towns in the south of the country have closed coffeeshops that draw in day-tripping tourists from Belgium, Germany and France with the aim of countering public disorder, Amsterdam’s small-scale cannabis retailer shops don’t cause any such problems. A further government proposal to ban coffeeshops within 350 metres of schools will cause chaos in Amsterdam. Under the new rule, only 36 of the capital’s 220 coffeeshops would be allowed to remain open.

Health problems may increase if cannabis is sold on the street and there are concerns about increased sales to minors as the city councils would loose their grip on the cannabis market even more, which is now partially supplied by highly regulated coffeeshops. Apart from Amsterdam, the city councils of Eindhoven, Den Bosch and Maastricht in the south of the country where the measure would be introduced initially, have already voted against the plan. Newspaper reports reveal resistance among Dutch cannabis users who oppose registration and say they will buy their cannabis outside the coffeeshop if the measure is introduced.

Coffeeshop in Amsterdam

A recent study in Amsterdam showed that 83% of coffeeshop visitors oppose registration. When told that it would be obligatory, 32% said they would comply eventually. One quarter said they would start to grow cannabis themselves or buy directly from cultivators, while another quarter would buy from other dealers or home-delivery services. According to one of the authors of the study, Marije Wouters, illegal dealers will cash in by taking orders by mobile phone and delivering directly to customers. Under-age cannabis users and ‘drug tourists’ from neighbouring countries will turn to the illicit mobile dealers as well.

Nicole Maalsté, a criminologist at the University of Tilburg, says the police and the prosecution office have no capacity to enforce the proposed cannabis pass system. The problems surrounding the Dutch coffeeshop model are not that it increased cannabis use, but are rooted in the paradox that the [front door] sale and possession of small quantities are no longer prosecuted, while the [back door] supply to the coffeeshops (cultivation and trade in larger amounts) are still fully criminalised and therefore mainly controlled by criminal networks.

According to Maalsté this problem has worsened due to police action in recent years against small home growers. "The result is that the supply of cannabis to coffeeshops is now in the hands of criminal networks, which the police cannot control. The alternative is to regulate supply and cannabis cultivation." Maalste believes that the real intention of the government is to close down all coffeeshops and end entirely a policy of tolerated cannabis sales. Yet another report commissioned by the government, proposed to prohibit cannabis with a THC content higher than 15 %, putting it on the same list in the Dutch Opium Act as hard drugs such as cocaine and heroin. Coffeeshops would only be allowed to sell cannabis with a lower THC content.

The avalanche of measures by the government to restrict the already highly regulated coffeeshops seems intended to regulate them out of business. Although the proposed measures still need to be approved by the Dutch parliament, a widening divide is emerging between the conservative law-and-order government and local municipalities with coffeeshops. The majority of those municipalities that allow coffeeshops want to go in a different policy direction, and have proposed different policies to finally regulate the 'backdoor' supply. In 2008, at a so-called “cannabis summit”, around 30 mayors asked for a “monitored pilot scheme” to assess if licensed growers could reduce cannabis supply-related crime.

Legal obstacles

The new measure banning foreigners also depends on the outcome of the proceedings before the Council of State between the municipality of Maastricht and the Easy Going coffeeshop concerning the citizenship condition that allowed only Dutch citizens access to the city's coffeeshops. Although the European Court of Justice ruled in December 2010, that the Maastricht city council is not breaking European law by attempting to stop non-residents buying soft drugs in the city's cannabis cafes, the Council of State might take other aspects into consideration. According to Professor Jan Brouwer of the University of Groningen, the resident requirement is unconstitutional.

According to Article 1 of the Dutch Constitution, everyone who is present in the Netherlands must be treated equally. An infringement of that principle can only be made if there is a reasonable legal justification to do so, says Brouwer. The reason provided by the government – disturbance of the peace – does not suffice. It assumes that it’s only foreigners who are disturbing the peace around coffeeshops. This has never been proven. In fact, the Dutch are just as likely to offend as foreigners. Brouwer expects that the Council of State will not accept the mandatory denial of access to coffeeshops by non-residents.

Another problem is that the government plans would require citizens to become members of an association that would commit criminal offences on a structural basis. After all, sale and possession of cannabis are still formally prohibited according to the Dutch Opium Act. The policy of toleration is based on the expediency principle in Dutch law, a discretionary option that allows the Public Prosecution to refrain from prosecution if it is in the public interest to do so. Based on that principle coffeeshops are tolerated when they follow the guidelines – known as the AHOJG criteria – issued by the Public Prosecution Office: refraining from advertising, not selling hard drugs, not causing public disorder, no sales to minors, and sales limited to a small quantity per transaction (5 grams), as well as limits on inventory (500 grams).

The government wants to add a new ‘toleration’ requirement to the list: the coffeeshop owner must set up an association that his customers are obliged to join. It is extremely dubious whether this is legal, according to Brouwer. The association would be one that would commit criminal acts on a structural basis. The Court of Almelo already judged such an association to be illegal in 2001 and had it dissolved at the demand of the public prosecutor on the grounds of being contrary to public order. The aim of the association had been to promote the interests of cannabis consumers by providing quality cannabis products.

Cannabis social club in Utrecht

Utrecht Alderman Victor Everhardt

The government also repeated that it will oppose the scientific experiment announced by the municipality of Utrecht. The experiment consisted of setting up a closed club model for adult recreational cannabis users who would grow their own cannabis in a cooperative (see for instance the model of cannabis social clubs in Spain). This model offers them the possibility of regulated, controlled cultivation for personal use in a small-scale setting. The regulation and control of sale within this model will be based on strict agreements that guarantee the non-criminal origin, as well the quality of the cannabis, which is important to prevent health hazards. Victor Everhardt, the alderman of Utrecht who proposed the experiment, reacted by saying that Utrecht will nevertheless continue with the preparations.

Successive Dutch governments have opposed the regulation of the backdoor, using the arguments of a legal report by the T.M.C. Asser Institute of 2005, "Experiments in allowing the growing of cannabis to supply coffeeshops - International and European Law issues" . This report concluded that an experiment with the tolerated cultivation of cannabis for the supply of coffeeshops conflicts with the Netherlands' obligations under the 1961 UN Single Convention and the 1988 UN Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

The Asser Institute claims that regulated supply of cannabis to coffeeshops would not fall under the reservation the Netherlands made to the 1988 UN Convention. The reservation, which has not been contested by any of the treaty partners, stipulates that the obligations stemming from the convention have to comply with national criminal law and national criminal policy. The reservation allows for the current coffeeshop regulations, according to the Asser Institute, but a unilateral adoption of licensed cultivation cannot reasonably be regarded as good-faith compliance of existing treaties. However, other legal experts say the tolerated sale of cannabis in coffeeshops is not allowed under the conventions as well, but that has not stopped every Dutch government to date to defend the policy since the system was introduced 35 years ago in 1976.

Other legal experts do not agree with the conclusions of the Asser report. Ybo Buruma, a professor of criminal law and criminology recently appointed to the Dutch Supreme Court, says that regulating the cannabis supply chain, or facilitating an experiment for that purpose, is possible within the existing legal framework of international and European legal obligations. The reservation of the Netherlands to the 1988 Convention would allow for regulation of supply since the aim of regulation is to fight against organized crime and promote public health: the involvement of organized crime in cultivation and distribution of cannabis will be reduced, because the coffeeshops are only allowed to sell cannabis produced by licensed growers, and public health will be promoted by regulating the THC content in the licensing conditions.

Utrecht alderman Everhardt says that the Asser report “clearly states that it is possible to regulate cultivation for personal use at a national level.” He is not impressed with the objection of the government. “If we want to experiment within the existing laws and regulations we can do so. Of course I hope that the government will support it eventually."

Abolishing the coffeeshops?

The new measures by the government do not seem to resolve anything. The latest set of measures would complicate the regulation of the coffeeshops to the point of slowly abolishing the coffeeshop system without openly declaring so. The debate in the Netherlands between the proponents and adversaries of the coffeeshop seems to agree on one thing: the half-baked regulation of the coffeeshops has reached its endpoint. Either the coffeeshops should be abolished or the 'backdoor' supply has to be regulated. However stacking more dubious and excessive regulations on top of the current ones will only make the system unworkable and unenforceable. Abolishing coffeeshops all together is the stated aim of one of the government coalition partners, the Christian Democratic Party, which has been the main architect of the salami-slice strategy to impose more and more restrictive regulations on the coffeeshops. This has slowly but progressively undercut the coffeeshop system over the past decade.

What would be the consequences of abolishing the coffeeshops? The government should look to the situation in Denmark, which used to have a similar tolerant attitude towards cannabis as the Netherlands. However, Denmark changed their policy in 2004 when possession for personal use was re-criminalized, from a discriminatory warning to an obligatory fine of 70 Euros, which was quadrupled in 2007. The law was immediately followed by an extensive police crackdown on Christiania’s open cannabis retail-market and so-called hash-clubs in the rest of Copenhagen.

Crackdown in Christiania

The results have not been encouraging. The change of policy resulted in a displacement of street dealing all over Copenhagen and an increase in market-related violence of criminal gangs disputing control over selling points. Both police and politicians admit that the trade still thrives on the street, if in a somewhat more discreet fashion. A major difference between now and then is that the dealing is now controlled by the hardest groups of dealers, who have managed to withstand regular police raids. Police say that some of these people have gang connections, and much of a gang war in 2009 has been directly linked to the drug trade.

“If the goal was to stop the trafficking of hashish in Christiania, then it has absolutely not succeeded,” the president of the Police Officers Federation said. According to the police, the main reason why they have failed to completely stop the cannabis trade is that it requires enormous resources.

Disappointed with the outcome of the crackdown, the Copenhagen City Council voted for a proposal to run a three-year trial in which stores staffed by healthcare professionals would sell cannabis in small quantities at about 50 kroner per gram – similar to the current street price. Only city residents would be able to buy the cannabis thus preventing Dutch-style ‘cannabis tourism’. The Danish Minister of Justice has already made its opposition clear to the Copenhagen city council proposal.

Drug policies should be evidence-based to prevent unintended negative and harmful consequences. Clearly, the example of Denmark shows that a return to prohibition of open cannabis sales does not reduce the cannabis market, but increases violence while diminishing government control over the impact of the cannabis market on society. Recently, the Global Commission on Drug Policy, headed by the former presidents of Brazil, Colombia and Mexico, and other international figures such as the former Secretary General of the United Nations, Kofi Annan, called for experimentation by governments with models of legal regulation of cannabis to undermine the power of organised crime and safeguard the health and security of their citizens.

Instead of suffocating the coffeeshops in dubious and excessive regulations, the Dutch government should take the recommendation of the Global Commission to heart and regulate the 'backdoor' by experimenting licensed cultivation. A rejuvenated Dutch coffeeshop system including regulated supply has the potential to significantly reduce the negative and harmful consequences of the half-baked system currently in place. Moreover, it is much better than pushing cannabis back onto markets controlled by criminals.