Now available on the Luxembourg govt website – what you can and cannot do with regards to regulated cannabis
It emerges from the 2018-2023 coalition agreement that legislation on recreational cannabis will be drafted ( 2018-2023 Coalition Agreement ) . The concept initially proposed, part of a public health approach and providing for the establishment of a system for legal access to cannabis, has slowed down due to the pandemic, but will continue to be developed.
Given that it nevertheless seems essential to us to make progress on the crime prevention component , the political approach consists of proceeding step by step and immediately putting in place a different approach to recreational cannabis, pending the finalization of the initial project. The recreational cannabis project is part of a wider catalog of inter-ministerial measures, in order to tackle the fight against drug-related crime horizontally.
On the one hand, it is proposed that adults should be able to legally cultivate for personal consumption up to four cannabis plants per household from seeds.
On the other hand, it is planned to decorrectionalize the criminal penalties for small quantities of cannabis on the public highway and to institute a lighter and more expeditious criminal procedure (taxed warnings) with regard to adults whose consumption, possession and possession in public, as well as transportation and acquisition, does not exceed 3 grams of cannabis or its derivatives (including mixed products).
Growing cannabis at home
In the first place, the trade in cannabis seeds should be allowed nationally when it would be inconsistent to be able to legally have four cannabis plants at home, while the acquisition and possession of the seeds necessary for the cultivation of these plants would remain illegal.
There are no plans to limit the amount of cannabis seeds that an adult can acquire and possess, nor to provide for THC level thresholds (THC is the compound best known for its euphoric / psychoactive effects.) in the seeds, while, on the one hand, the consumption of the seeds, no matter how much, does not have a stupefying or euphoric effect, and, on the other hand, it is impossible to accurately determine the number of seeds necessary for the cultivation of the four plants whereas it depends, on a case-by-case basis as with other plants, on the factual conditions of the cultivation and the individual skills of each grower.
It should be possible to purchase seeds in stores in Luxembourg, imported from abroad, or online. In the long term, it should also be envisaged to authorize a national production of seeds for commercial purposes, whereas claims in this direction are to be expected. It would indeed be inconsistent for consumers to legally acquire seeds from abroad, while domestic production would remain prohibited. The legal framework relating to professional producers in the agricultural / horticultural sector should be adapted in this direction within the framework of the same bill adapting the penalties and criminal proceedings.
For personal consumption, it is planned to allow up to four cannabis plants per household, to be grown yourself from seeds.
It should be noted that it is proposed to provide four plants per household, and not four plants per adult person in the household, while the concept of “household” is much more stable and easy to define, especially in the event of criminal prosecution, while that the approach of four plants per person in the household would be much more fuzzy, variable and easy to manipulate by people intending to circumvent the provisions of the law.
The place of cultivation of the four plants should be limited to the domicile or habitual residence of an adult. Cannabis cultivation should be possible both indoors and outdoors (balcony, terrace, garden, etc.). Provision should be made for the plants to be in any event not visible to anyone passing by on the public highway. Growing all four plants outdoors has the advantage that, due to climatic conditions in Luxembourg, the THC level is generally lower than the THC level of plants grown indoors. However, outdoor cultivation should be limited to areas directly adjacent to the home or usual place of residence of the adult person (e.g. garden) in order to prevent cultivations in places (e.g. community gardens). .conditio sine qua non in the event of possible criminal prosecution.
The ban on consumption in public is maintained . Any free or valuable transfer of cannabis or derivative products remains prohibited. In the event of non-compliance with the place of cultivation or when the number of plants cultivated at home is exceeded, criminal proceedings are initiated according to the common law of criminal procedure, on the basis of a criminal offense to be created. The penalties for this new offense should lie between, on the one hand, the penalties provided for the simple possession, consumption or transport of 3 grams or less on the public highway and, on the other hand, the severe penalties provided for traffickers. drugs.
Decorrectionalization limited to 3 grams and simplified procedure
A decorrectionalization for the offenses of consumption, possession, possession and transport in public as well as for the acquisition is planned, when the quantity in question is less than or equal to 3 grams, in the absence of indications of sale or trafficking and / or other aggravating circumstances.
It is thus planned to replace the basic criminal fine of 251.- euros to 2,500.- euros currently in force by a fine of 25.- euros to 500.- euros and the possibility of issuing a warning taxed at 145 euros, if and only if the threshold of 3 grams is not exceeded. The related procedural modalities would be modeled on existing taxed warning procedures in other matters, such as tobacco control.
The payment of the tax has the consequence of stopping any criminal prosecution. The law should expressly provide that the acceptance of the taxed warning is automatically equivalent to the waiver of 3 grams or less of cannabis, which must be returned immediately to the police officer issuing the taxed warning and which are then destroyed by the law. Police.
In the event of refusal of payment or of dispute, the report is drawn up in accordance with common law. If the offender, at first, accepts the taxed warning but, then, does not pay it or contests it within the period of thirty days, a fixed fine in the amount of 300.- is awarded by the State Prosecutor. Public action is extinguished by the payment of the fixed fine. In the absence of payment or contestation of the fixed fine, the offender is summoned by the Public Prosecutor’s Office to the Police Court which may then pronounce the maximum fine of 500.- euros. When the offender is convicted, an entry in the criminal record follows.
In the event of acceptance and payment of the taxed warning, the offender automatically renounces the product and destruction is ordered. In the event of a dispute, the product is seized for analysis and the route of classic criminal prosecution is initiated. According to common law, the analysis costs are part of the legal costs and are payable by the accused person in the event of a conviction.
Infractions are noted and investigated by the judicial police officers and agents of the Police and by the agents of the Customs Administration. As in other matters providing for taxed warnings, the collection of fines is carried out by the Registration Administration.
Above the 3 gram threshold, the offender is considered a drug trafficker. The recourse to the taxed warning is excluded, the police officer must then draw up an ordinary report to be transmitted to the Public Prosecutor’s Office and heavier penal sanctions can then be pronounced, according to the common law of the penal procedure.
Note that it is not proposed to provide for specific and intrusive legal provisions on privacy when a person is, for example, in possession of a quantity greater than 3 grams on the public highway. In these cases, the common law of criminal procedure would apply, in particular those relating to flagrant crimes and offenses and those requiring a warrant from the investigating judge in order to be able to carry out a home search.
With regard to minors , regardless of the quantity of cannabis involved, the possibility of issuing a taxed warning is excluded, as in all other matters providing for taxed warnings (e.g. tobacco control), while a taxed warning has the legal nature of a penal transaction and a minor does not have the legal capacity to compromise on his rights.
The Police therefore draw up, in any event, a report to be sent to the Public Prosecutor’s Office and common law procedures in matters of youth protection apply. In view of the information in the file, the juvenile judge will take the appropriate diversionary measures, such as therapy or the obligation to follow the “Choice” program. The emphasis is more on the protection of young people than on the criminal prosecution of the minor.
With regard to consumption in the presence of minors or together with one or more minors, respectively at school, it should be noted that these aggravating circumstances remain criminally punishable, as is the case today.
As far as road traffic is concerned , no changes are proposed. The threshold limit (1ng / mL THC) currently listed in article 12 of the Highway Code is maintained. In effect, the limit value is equivalent to zero tolerance .
The penal sanctions foresee an imprisonment of 8 days to 3 years and a fine of 500.- euros to 10,000.- euros or one of these penalties only.
Legislative changes envisaged
It is proposed to adapt the legal framework, including in particular the amended law of 19 February 1973 on the sale of medicinal substances and the fight against drug addiction, in order to introduce the changes proposed above. The legislation on commercial agricultural / horticultural production should be adapted in order to make the production of seeds legal on the national territory.
It is proposed to give a mandate to the Ministry of Justice to prepare a related bill, in close cooperation with the other Ministries, administrations and authorities concerned:
- Judicial authorities,
- Ministry of Health,
- Ministry of Internal Security (Police),
- Ministry of Agriculture (Administration of Technical Services of Agriculture),
- Ministry of the Economy (Office for the control of exports, imports and transit),
- Ministry of Finance (Customs Administration and Registration Administration).