Illicit drug trafficking and consumption – Between myth and legal reality
In our society, drugs tend to remain a taboo subject. However, it is clear that the social phenomenon of drug use and trafficking is on the rise. The approaches of countries around the world vary, with some taking a lenient attitude towards these behaviors and others, including Romania, adopting a legislative framework aimed at combating them.
We believe it is necessary to understand how the Romanian legislator sanctions certain conduct involving drugs and substances prohibited by law to know the risks to which we are subject and the criminal implications that may occur. The main provisions of our legislation are contained in Law No 143/2000 on preventing and combating illicit drug trafficking and consumption.
Drugs are divided into two broad categories, and penalties vary depending on the category:
- risk drugs (e.g., cannabis, ketamine);
- high-risk drugs (e.g., cocaine, ecstasy, etc.)
The regulatory act contains the substances concerned in Tables I to III, and the list may be amended at any time, either to add or delete a substance.
The general perception tends to see only active involvement in trading substances prohibited by law as risky. Although drug use is not criminalized as a separate offense, and the lack of separate criminalization of drug use creates the appearance that criminal sanctions are only aimed at those who supply and maintain the circuit of prohibited substances, on closer inspection, we find that Romanian law, in Article 2 of Law 143/2000, penalizes the following drug-related offenses:
- cultivation, production, manufacture, experimentation, extraction, preparation, transformation;
- offering for sale, sale, distribution, delivery under any title;
- shipping, transport;
- procuring, buying;
- any other operations relating to the movement of drugs.
The penalty is imprisonment from 2 to 7 years for risky drugs and 5 to 12 years for high-risk drugs.
Article 3 of Law 143/2000 also punishes the introduction or removal from the country and the import or export of drugs with imprisonment from 3 to 10 years for risky drugs and imprisonment from 7 to 15 years for high-risk drugs.
Therefore, criminal law protection covers many acts that do not involve any financial gain or a certain frequency and may give rise to criminal liability even if committed in isolation. For example, the mere possession of drugs is a criminal offense, while consumption often involves possession of the substances. On many occasions, drugs are consumed in groups of several people in an informal setting (meetings between friends and parties), and it is enough for one of the participants to share the substance he is consuming with the other members to be the perpetrator of the drug trafficking offense.
Moreover, Article 5 of the law punishes the knowing provision, for any reason, of a dwelling or premises or any other place of business to which the public has access for the illicit consumption of drugs. It should also be borne in mind that aiding and abetting those who commit the offenses referred to in the law may be regarded by the judicial authorities as an act of complicity.
The quantity of drugs is relevant in determining the seriousness of the offense. It is just a myth that possession of a tiny quantity does not attract criminal penalties. Indeed, if the offense involves a smaller quantity, the prosecuting authority may have recourse to a waiver of prosecution, as there is no public interest in investigating a minor incident, and the court could order a waiver of punishment or a deferral of punishment, which do not imply a conviction.
Situations in which criminal liability is mitigated or even waived
Liability is mitigated if the offenses are committed for own consumption, with a prison sentence of 3 months to 2 years or a fine for risk drugs and a prison sentence of 6 months to 3 years for high-risk drugs.
Moreover, the mitigated treatment of the commission of the offense when it concerns own consumption also includes the possibility of integrating the suspected person into an integrated assistance program for drug users. Moreover, the court may decide to waive or postpone the imposition of the penalty even if the conditions laid down in the Criminal Code are not met, as long as the person has complied with the assistance program. The personal data of persons in these programs are protected by the authorities and are strictly confidential.
A ground for non-punishment is also provided for in favor of a person who, before criminal proceedings have been initiated by the competent authorities, self-reports and contributes to the identification and prosecution of the other participants in the offense.
If criminal prosecution has already begun and the person can no longer benefit from the ground for non-punishment, if the person under investigation cooperates with the judicial authorities and facilitates the authorities, he/she will benefit from a reduction by half of the penalty limits provided for by law.
Circumstances that may aggravate criminal liability
It should be noted that Article 13 of Law 143/2000 introduces a number of aggravating circumstances which may be taken into account by the court in the trial of a case:
- the person who committed the offence held an office involving the exercise of public authority and the offence was committed in the exercise of that office;
- the offence was committed by a medical professional or a person who is legally responsible for combating drugs;
- the drugs were sent or delivered, distributed or offered to a minor, a mentally ill person, a person in a therapeutic programme or other such activities prohibited by law were carried out in relation to one of these persons or if the offence was committed in or near a medical, educational or military institution or establishment, place of detention, social welfare centre, re-education or medical-educational institution, places where pupils, students and young people carry out educational, sports or social activities;
- minors were used to commit the offences
- the drugs were mixed with other substances that increased their danger to life and limb.
Key procedural issues
Prosecuting authorities have the possibility to search persons and vehicles showing signs or suspicions of drug offenses without a warrant from the judge. The prosecuting authority must ask the person concerned to voluntarily hand over the objects sought. The search must be carried out with respect for the dignity of the person and by a person of the opposite sex.
Suppose you are alleged to be detained or arrested, or involved in an investigation into a drug trafficking offense. In that case, you have the right to be informed of the offense for which you are being investigated and its legal classification. You also have the right to a lawyer to guarantee your defense and an honest investigation. You also have the right not to make any statement to the investigators, and you should be aware that any statement you make may be used as evidence against you.