Decriminalization of Drug Use in Portugal:
The Development of a Policy
Mirjam van het Loo, Ineke van Beusekom, and James P.
Kahan
RAND Europe, Leiden, The Netherlands[1]
INTRODUCTION
Portugal has begun as of 1 July
2001 a remarkable experiment, decriminalizing all drugs, including not just
marijuana but also heroin and cocaine.
By decriminalization is meant that use and possession for use are
subject to administrative sanctions instead of criminal proceedings; in keeping
with international treaties and the practice in other countries, Portugal is
not prepared to legalize drugs. The decriminalisation policy is the flagship of
a revolutionary change in Portuguese drug policy, in which it is one of a
number of harm reduction measures.
This revolutionary step
began with the formation of an elite expert commission to consider what was
widely regarded as an increasing drug use problem. This Commission for a National Drug Strategy
(CNDS) produced a report (Comissão para a Estratégia Nacional de Combate à
Droga, 1998) recommending a major shift in Portuguese drug policy in the
direction of harm reduction, including decriminalization. This shift was the logical development of an explicit
set of basic principles for policy developed by the Commission, and did not
consider the experiences of Spain or other countries (members of the CNDS,
personal communications).
To the surprise of some of
the members of the CNDS, the Council of Ministers approved the report almost in
its entirety (Government of Portugal, 1999) and produced a national drug
strategy consistent with that report (Government of Portugal, 2000). The Assembleia
da República (parliament) and Council of Ministers, with the approval of
the President of the Republic, passed specific implementation legislation, of
which the most significant is the decriminalization law that has taken effect
July 2001.
In this article we shall
provide some background information on drugs and drug usage in Portugal and
trace the development of the changes in Portuguese drug policy and what the
anticipated results of the changes will be.
Because this is policy-in-the-making, with changes sometimes occurring
on a daily basis, our description is largely based upon a series of interviews
and discussions dating from March 1998 through July 2001, conducted in
Portugal, with over 35 people involved in this process. The interviewees were,
among others, most of the members of the CNDS, members of parliament, a Supreme
Court justice, the mayor of Lisboa, members of treatment delivery organizations
from different parts of the country, the leadership of the Institute for Drugs
and Drug Addiction (Instituto Português
da Droga e da Toxicodependência = IPDT) and the Drug Prevention and
Treatment Service (Serviço de Prevenção e
Tratamento da Toxicodependência = SPTT).
These interviews have been reinforced by examining what data exist on
the drug problem in Portugal and official governmental documents.
Setting
the stage
Before we turn to drug
policy in Portugal, we will provide some background information about the
country itself to put that policy in perspective. Modern Portugal has approximately 10 million
inhabitants and has a total land area of about 92,000 square kilometers. The country occupies the western edge of the
Iberian peninsula (except for Galician Spain in the northwest corner), plus the
two island groups of the Açores and Madeira.
Portugal is an old country, with borders pretty much the same for over
900 years; it remains remarkably homogeneous in its culture, language,
religion, and ethnicity. The 20th
Century saw 48 years of dictatorship and poverty, ending with a bloodless
revolution in 1974, which was followed by the establishment of solid democratic
structures and the beginning of a remarkable period of economic growth. In 1986, Portugal entered the European Union
(EU), and, although still one of the poorer countries in the EU, it was one of
the original eleven countries to join the EURO zone in 1999. Perhaps in reaction to the years of
dictatorship, current Portuguese political philosophy favors providing a strong
degree of both individual liberty and autonomy to subnational government
(Kahan, et al., 1999); this latter is especially true for social services such
as health, education and the prevention and treatment of drug use.
PORTUGAL'S DRUG PROBLEM
The revolution of 1974 and
economic growth of the past 27 years have not been an unmixed blessing. With the transformation from a highly
dispersed rural demography to concentration in cities—notably Lisboa and
Porto—came some of the ills of modern society, including drug abuse. However, although there is widespread belief
that Portugal's drug problem worsened in the 1990s, real data on the extent of
the problem has remained scarce. Indeed,
one of the first calls in the national drug strategy is for the collection of
more reliable, valid and comprehensive data on the drug phenomenon.
Data on drug
usage and treatment
Although recent data suggest a population as high as 100,000 drug addicts, more usual and conservative estimates put the number of Portuguese drug users between 50,000 and 60,000 out of a total population of approximately 10 million people (www.drugtext.org/count/portugal/portugal1.html). One third of both the general population and population of drug users are concentrated in the Lisboa area.
Portuguese data on drug usage is scant and not reliable. There is no equivalent to the national surveys on drug use that take place in a number of North American and European countries; no data exist on the lifetime or last 12 months prevalence of drug use among the general population in Portugal. What data are collected are reported to the European Monitoring Center on Drugs and Drug Addiction (EMCDDA), which was set up (coincidentally, in Lisboa) to provide the European Commission and its Member States with objective, reliable and comparable information concerning drugs and drug addiction and their consequences, and collects information on drugs use in each of the European Union Member States. The information below is available through EMCDDA (www.emcdda.org ; EMCDDA, 2001)
Table 1
Statistical
description of drug use in Portugal
|
Lifetime
prevalence of use of different illegal drugs among 15- to 16 year-old
students (from a sample of 4767 students; year 1995) |
|
|
all illegal drugs |
4.7% |
|
cannabis |
3.8% |
|
LSD |
0.2% |
|
cocaine |
1.0% |
|
heroin |
0.9% |
|
Characteristics
of the persons treated for drug problems |
|
|
mean age |
28.6 yrs |
|
gender = male |
84% |
|
heroin as main drug |
>90% |
|
injection as main route of administration |
42% |
|
Incidence of drug-related AIDS cases (annual incidence rates per
million population) |
|
|
1985 |
0.1 |
|
1990 |
4.3 |
|
1995 |
39.5 |
|
1998 |
54.7 |
|
Prevalence of hepatitis C among drug injectors |
|
|
Lisboa, 252 people tested 1998-1999 |
74% |
|
Prevalence of HIV infection among drug injectors |
|
|
Nationwide, 632 people tested 1998-1999 |
14% |
|
Lisboa sample |
48% |
These data, which experts claim stretch credulity, clearly indicate that
the drug problem increased significantly during the 1990s.
Figure 1 : Number of acute
drug-related deaths 1987 - 1998
This places Portugal unfavorably with respect to
other harm-reductionist countries, with 34 drug related acute deaths per
million citizens, compared to 4 per million in the Netherlands, 8 per million
in Spain and 19 per million in Italy.
Data on criminal justice system activity with
regard to drugs
Arrests for drug
offenses reflect the increasing use of heroin.
In 1991, 4667 people were arrested for drug offenses. By 1995, this number was up to 6380, and by
1998, the figure was 11395, or 235 percent of the 1990 figure. In 1998, 61% of the arrests were for use or
possession for use (as opposed to sale or possession for sale), and 45% of the
arrests were heroin-related. Given the
overwhelming prominence of heroin in drug treatment, these numbers are
relatively low.
Table 2 provides
information on seizures of drugs. This
table is another indication that the heroin problem increased in the 1990s, but
that seizures of other drugs did not reflect the pattern of heroin. The quantities for ecstasy and LSD are so
small that they cannot be used to form reliable indicators of the extent of
usage of these drugs.
Table
2
Numbers
of Seizures and Quantities of Drugs Seized in Portugal, 1990, 1995, and 1998
|
|
Seizures per year |
Total quantities per year |
|
Cannabis |
1990:
1279 1995:
914 1998:
2063 |
1990:
9606 kgs 1995:
7493 kgs 1998:
5582 kgs |
|
Heroin |
1990:
1346 1995:
2828 1998:
3750 |
1990: 36
kgs 1995: 66
kgs 1998: 97
kgs |
|
Cocaine |
1990:
346 1995:
872 1998:
1377 |
1990:
360 kgs 1995:
2116 kgs 1998:
625 kgs |
|
Amphetamines |
1990: 2 1995:
not available 1998: 1 |
1990:
not available 1995:
not available 1998:
not available |
|
Ecstasy |
1990:
not available 1995: 5 1998: 35 |
1990:
not available 1995: 77
tablets 1998:
1127 tablets |
|
LSD |
1990:
not available 1995: not
available 1998: 10 |
1990:
not available 1995: 11
doses 1998:
261 doses |
Comparing Portugal to its neighbouring countries,
the number of heroin seizures per million inhabitants is quite low: whereas the
Portuguese police seize heroin 37 times per 1 million inhabitants, this number
is 52 for the Netherlands, 337 for Spain and 112 for Italy. It is inadviseable,
however, to draw any conclusions about the heroin market in a country on the
basis of these numbers, because the number of seizures depends on a variety of
factors, of which the effectiveness of the police is one. Still, one might expect Portuguese seizures
to be higher, given that its coastal access and links to Brazil make it an
attractive transshipment country.
Treatment
of drug addicts
The number of treatment episodes in Portugal has increased fivefold in the last nine years, from 56438 in 1990 to 288038 in 1999 (SPTT, 1999). The 1999 episodes were for 27750 individual drug users, for an average of about 10.4 annual visits per user. Of all drug addicts undergoing treatment at treatment centers (CATs) in 1997, 95.4% were heroin users. Methadone or LAAM is not extensively used, being prescribed to only 21.8% of individuals in treatment. Treatment professionals in Portugal have long been reluctant to treat heroin users in substitution programs, because they did not believe in its effectiveness.
Table 3
Treatment in Portugal in 1999, by type of treatment
center
|
Type of
treatment center |
Number of centers |
Number of patients (1999) |
Number of consults/days |
|
Addict consultation centers (CAT - centros de atendi- mento a
toxicodependentes) |
40 (+ 10
annexes) |
27750 |
288038 consults |
|
Rehabilitation centers (Unidades
de Desabituacão) |
5 UD - 46 beds |
1945 |
11431 days |
|
Therapeutic communities (Comunidades
Terapeuticas) |
2 CT - 34 beds |
63 |
10578 days |
|
Day centers (Centros de Dia) |
4 |
106 |
Not available |
At a more operational level, the IPDT (a new organization begun in 2000), is responsible for the coordination of treatment and prevention. At the local level it has district delegations, which allow closer proximity to the problems and the individuals. IPDT works in cooperation with ministerial services, such as the SPTT and the prevention programs in schools set up by the Ministry of Education. (EMCDDA, 2001).
Figure 2: Organizational chart of the
Institutional framework in Portugal
Table 4
Government Budget on Drugs and Drugs Abuse by Intervention Areas
|
Intervention
area |
Year 2000 (Euro) |
Percent |
|
Prevention |
24,150,976 |
23.3 |
|
Treatment |
29,288,115 |
28.2 |
|
Rehabilitation |
15,234,195 |
14.7 |
|
Harm reduction |
4,589,728 |
4.4 |
|
Prisons |
3,427,404 |
3.3 |
|
Law enforcement |
24,007,142 |
23.2 |
|
Research |
2,097,445 |
2.0 |
|
International cooperation |
887,860 |
0.9 |
Total |
103,682,864 |
100.0 |
Source: IPDT, 2000
PORTUGUESE DRUG
STRATEGY
The CNDS was formed in response to a rapidly rising drug problem in the 1990s, principally but not exclusively involving heroin use. The path begun by CNDS and followed by the government makes clear that Portugal does not wish its policies to place it outside the mainstream of international drug policy. But Portugal equally clearly is determined to implement a coherent and comprehensive strategy based upon the philosophy of harm reduction, in the broad sense of referring to activities that reduce harm to the drug consuming individual and society. In this broad sense of the word, all activities that reduce supply and demand and all activities that improve the situation of consumers can be considered harm reduction measures, including effective treatment and prevention (members of the CNDS, personal communications).
Eight "structuring principles" upon which the strategy is built begin with acknowledgment of the international arena and acknowledge the importance of prevention, but then go immediately to the heart of the matter—the "humanistic" and "pragmatic" principles. These two declare that drug users are to be regarded as full members of society instead of cast out as criminal or other pariahs, and that the strategy will not attempt to strive toward an unachievable perfection such as "zero drug use," but will instead try to "make things better" for all segments of society. The principle of security refers not only to the general public, as potential victims of drug-induced crime, but the drug users themselves. The remaining three principles reflect Portuguese political philosophy, with efficiency of resources needed to maintain economic development, subsidiarity part of a concerted effort to push policymaking to as local a level as possible, and participation a legacy of the revolution of 1974 (Government of Portugal, 2000, p. 39).
The structuring principles
are translated into a set of thirteen "strategic options" (Government
of Portugal, 2000, pp. 43-44) that form the heart of Portuguese drug
policy. These are:
1. To reinforce international cooperation and to promote active participation of Portugal in the definition and evaluation of the strategies and policies of the international community and the European Union;
2. To decriminalize the use of drugs, prohibiting them as a breach of administrative regulations.
3. To redirect the focus to primary prevention.
4. To extend and improve the quality and response capacity of the healthcare
network for drug addicts, so as to ensure access to treatment for all drug
addicts who seek treatment.
5. Extend harm reduction policies, namely through syringe and needle
exchange programs and the low-threshold administration of substitution drugs as
well as the establishment of special information and motivation centers.
6. To promote and encourage the implementation of initiatives to
support social and professional reintegration of drug addicts.
7. To guarantee conditions for access to treatment for imprisoned
drug addicts and to extend harm reduction policies to prison establishments.
8. To guarantee the necessary mechanisms to allow the enforcement by
the competent bodies of measures such as voluntary treatment of drug addicts as
an alternative to prison sentences.
9. To increase scientific research and the training of human
resources in the field of drugs and drug addiction.
10. To establish methodologies and procedures for evaluation of public
and private initiatives in the field of drugs and drug addiction.
11. To adopt a simplified model of interdepartmental political
coordination for the development of the national drug strategy (IPDT replaces
Projecto Vida).
12. To reinforce the combat against drug trafficking and money
laundering and to improve the articulation between the different national and
international authorities.
13. To double public investment to 160 million EURO (at the rhythm of
10% a year) over the next five years, so as to finance the implementation of
the national drug strategy.
The first strategic option again acknowledges the international context, but the second moves immediately to decriminalize the use of all drugs. Decriminalization, as is made clear, is not legalization, but removal of sanctions for drug use from the criminal justice system.
Legislation
The 13 strategic options have formed the basis for legislation and action plans that aim to set the legal framework for the strategy and its detailed implementation in a first stage between 2001 and 2004. In the past several months, laws and action plans have been issued for prevention, decriminalisation, harm reduction and reintegration and for the combat against drug trafficking and money laundering. Furthermore, treatment capacity has increased in order to be able to respond to the expected increase of treatment demand as a consequense of the decriminalisation law.
Prevention activities are to focus on primary prevention, in schools,
families and in the community in general. Harm reduction measures (in the narrow
sense of the word) include needle and syringe exchange, shooting rooms,
information and motivation centers and substitution programs. Decriminalization, as the
"flagship" of the strategy in terms of its attention in the public
eye and the complexity of its implementation, will be described here in greater
detail.
DECRIMINALIZATION
OF DRUG POSSESSION
Decriminalization represents a significant departure from the previous law, and is different from efforts in other countries such as Italy and Spain in that it explicitly separates the drug user from the criminal justice system. The CNDS recognized, and the government explicitly concurred, that imprisonment or fines have so far not provided an adequate response to the problem of mere drug use, and that it has not been demonstrated that to subject a user to criminal proceedings constitutes the most appropriate and effective means of intervention.
The international arena was explicitly addressed in
deciding to adopt decriminalization. The
national strategy document declared that after a study of the 1988 United
Nations Convention against illicit trafficking in narcotic drugs and
psychotropic substances, it was consistent with that convention to adopt the
strategic option of decriminalizing drug use, as well as the possession and
purchase for this use. In the Portuguese
view, replacement of criminalization with mere breach of administrative
regulations maintained the international obligation to establish in domestic
law a prohibition of those activities and behaviors. Moreover, decriminalization as defined by the
national strategy was the only alternative to maintaining drug use as a
criminal offense that is compatible with the international conventions
currently in effect (Government of Portugal, 1999, p.61).
How
decriminalization will work
Under the law that has taken effect on 1 July 2001, the use and possession for use of drugs is no longer a criminal offense, but instead is prohibited as an administrative offense. This distinguishes Portugal from Spain, where the policy is de facto decriminalisation, but where a drug consumer will still be judged by a criminal court, although he will never be sent to prison for drug consumption alone. The same holds for the American system of drug courts, which send a drug consumer to treatment only after he has been convicted by a criminal court. Both in Spain and in the U.S. drug court system, the consumer has a criminal record and it is this stigmatization that the Portuguese policy explicitly aims to prevent. There is no distinction made among different types of drugs ("hard" vs. "soft" drugs), nor whether drug use is private or in public. Decriminalization only refers to possession of drugs for personal use and not for drug trafficking. "Trafficking" for purposes of the law is possession of more than the average dose for ten days of use (although what these levels are for specific drugs is not spelled out in the law).
To deal with these administrative offenses, each of the 18 administrative districts in Portugal will establish at least one committee that deals only with drug use in that district (larger districts such as the ones containing Lisboa and Porto will probably have more than one committee). The committees will generally consist of three people, two people from the medical sector (physicians, psychologists, psychiatrists or social workers) and one person with a legal background. Committee members are not supposed to be involved in drug treatment but should be sufficiently knowledgeable to judge what is best for the user.
Drug users will largely be brought to the attention of the
administrative committees when the police observe them using drugs. Although police will cite users and send the
citation to the administrative committee, they will not arrest users. If the committee determines on the basis of
the evidence brought before it that the person is a drug trafficker, then the
committee will refer that person to the courts.
Although the law states that any doctor who detects a drug problem in a
patient may bring this to the attention of the committee in his or her
district, it is regarded as highly unlikely; not only is such reporting
repugnant to most doctors, but it might violate the doctor’s oath of
confidentiality.
The law states that the committee should consider a number of criteria
in determining what action to take with a drug user. These criteria include the
severity of the offense, the type of drug used, whether use is in public or
private; if the person is not an addict, whether use is occasional or habitual;
the personal and economic/financial circumstances of the user.
How these criteria are to be used is not stated. Some are of the opinion that the committee
may choose not to take any action; others believe that some form of action,
even if suspended, is required.
The committees have a broad range of sanctions available to them. These include:
·
fines, ranging from 25 to 150 EURO. These figures are based on the Portuguese
minimum wage of about 330 EURO (Banco de Portugal, 2001) and translate into
hours of work lost;
·
suspension of the right to practice if the user has
a licensed profession (e.g. medical doctor, taxi driver) and may endanger
another person or someone's possessions;
·
ban on visiting certain places (e.g. specific
discotheques);
·
ban on associating with specific other persons;
·
interdiction to travel abroad;
·
requirement to report periodically to the committee;
·
withdrawal of the right to carry a gun;
·
confiscation of personal possessions;