The Luxembourg Council of Ministers formally approved, in last friday, legislative changes that allow the consumption of cannabis in the private sphere and also the cultivation of four plants per household. The move forms part of the Grand Duchy government's Coalition Agreement 2018-2023, as part of a public health approach that provides for legal access to cannabis.
Luxembourg is the latest European country to show signs of progress in terms of its legislation on legalizing recreational cannabis. The legislation is curious as it is less based on a commercial aspect, but with a particular focus on crime prevention. The project itself claims to be “implementing, from now on, a different approach to recreational cannabis” and aims to horizontally combat crimes related to cannabis trafficking.
And the project, which was a stated goal of the coalition that makes up the government, is now formally advancing, after being approved by the Council of State last Friday. The final legislation will still need to be published in the Luxembourg Official Journal, which should happen next week.
27 measures to fight crime
This bill stems from a meeting, in October 2021, between the Ministers of Internal Security, Justice, Health, National Education, Children and Youth and Foreign and European Affairs. The Ministries presented at a joint press conference a coordinated package with 27 measures related to the problem of drug-related crime, which includes the legalization of cannabis.
It is precisely with a risk reduction and crime prevention approach that this measure makes the personal use of cannabis completely free, as long as it is limited to the private sphere. It will be allowed to grow up to 4 cannabis plants at home per household, exclusively from seeds.
Penalties and sanctions relating to the transport and possession of cannabis will be decriminalized, with a maximum of 3 grams per person, despite the fact that consumption on public roads remains prohibited and the “almost” zero tolerance of driving under the influence of cannabis (the limit was established of 1ng/ml of THC in the blood).
Seed trade allowed
In order for the entry of legislation into force to be a more expeditious process, the government will also make the trade in cannabis seeds authorized in the country, explaining that it would be inconsistent to legally allow the possession of four cannabis plants at home, and maintain the acquisition and possession of seeds, necessary for the cultivation of these plants, illegal.
The restrictions and regulations applicable to cannabis production materials by companies for later commercialization are not yet clear, and the initial project foresaw the creation of a market that would allow the production and acquisition of cannabis to supply the needs of the inhabitants. Naturally regulated under state control in order to establish guarantees regarding the quality of the production and marketing chain, the processes relating to production and marketing authorizations remain to be defined. However, proceeds from cannabis sales are already destined, and will be invested mainly in prevention, awareness and care in the vast field of addictive behaviors, which makes us suppose that they will flourish in the Grand Duchy.
Legal in the private sphere, decriminalized in the public sphere
The Luxembourg legal framework is particularly interesting as it is similar to the Portuguese model in the approach to the consumption and possession of cannabis on public roads, and the same can be said about offenses such as less serious trafficking when the quantities are lower than those established by law ( which in Portugal is 25 grams of herb, and in Luxembourg it will be limited to 3 grams).
The decriminalization provided for offenses of consumption, possession and public transport, as well as for acquisition, when the quantity in question is less than or equal to 3 grams, in the absence of evidence of sale or trafficking and/or other aggravating circumstances, being replaced by a base criminal fine of 25 euros to 500 euros. At the However, there is the possibility of issuing taxed warning of 145 euros, if, and only if, the limit of 3 grams is not exceeded, which, when paid, suspends the criminal fine. Nohowever, this payment automatically constitutes the waiver of 3 grams or less of cannabis, which must be handed over immediately to the police officer who issued the paid notice and which are then destroyed.
In amounts above the 3 gram limit, the offender is treated as a drug dealer. The use of a warning is excluded, and the police officer must draw up an ordinary report to be transmitted to the Public Prosecutor's Office, and heavier criminal sanctions may then be decreed, in accordance with the common law of criminal procedure.
Young people: Protection instead of persecution
Regarding minors, regardless of the amount of cannabis involved, the possibility of issuing a taxed warning is excluded, as in all other matters that provide for taxed warnings (e.g. and a minor has no legal capacity to compromise his rights.) In any case, the Police prepare a police report to be sent to the Public Prosecutor's Office and the common law procedures in the area of the protection of minors apply.
In view of the elements of the case, the juvenile judge will take the appropriate measures of deviation, such as therapy or the obligation to follow the “Choice” program. The regulation deliberately places greater emphasis on the protection of young people than on the criminal prosecution of minors. With regard to consumption in the presence of minors or together with one or more minors, respectively at school, these are aggravating circumstances that are and will continue to be criminally punishable.
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