The Dutch Opium Act contains the legal rules pertaining to narcotics. The Act differentiates between soft and hard drugs. In general, possession and trade in drugs is illegal, but penalties are more severe for hard drugs. The Prosecutor-General publishes directives that set out the Dutch tolerance policy in drug cases, which means that even though the activity is technically illegal, the offender will not be prosecuted as long as certain conditions are met. The directives address the operation of coffee shops in which soft drugs may be purchased and used, the different approaches in cases involving hard drugs and soft drugs, and what constitutes a small quantity of drugs for personal use. Furthermore, courts have the option to suspend the detention of an addict with a history of crime on the condition that he or she undergoes treatment in a special institution for intensive treatment.
I. General Overview
The legal rules concerning narcotic drugs are set out in the Dutch Opium Act. The Opium Act differentiates between “hard drugs” (schedule I) and “soft drugs” (schedule II). Cannabis is listed in schedule II. Sentences for acts involving substances listed in schedule I are more severe than for those listed in schedule II.
“Drugs” include substances and preparations. “Substances” are defined as “elements with a human, animal, plant or chemical origin, including animals, plants, parts of animals or plants, as well as micro-organisms.” “Preparations” are defined as “solid or liquid mixtures of substances.”
In general, bringing drugs into and taking them out of the territory of the Netherlands, and growing, preparing, treating, processing, selling, supplying, providing, transporting, possessing, and manufacturing drugs, is prohibited in the Netherlands. Exceptions exist for pharmacists, doctors, dentists and veterinary surgeons within the normal practice of their professions. Furthermore, an application for an exemption from the Opium Act for cannabis and cannabis resin can be filed with the Bureau voor Medicinale Cannabis (Office for Medicinal Cannabis Research) for reasons of public health, animal health, academic or chemical analytical research, training, or trade-related purposes.
II. Dutch Drug Policy
The Prosecutor-General issues directives that define the Dutch prosecution policy in drug cases. The directives address, among other issues, the conditions of operating coffee shops, the different approaches in cases involving hard drugs and soft drugs, and what constitutes a small quantity of drugs for personal use.
Technically, it is illegal to buy and sell soft drugs, but the Dutch government tolerates the sale of soft drugs in coffee shops to prevent users of soft drugs from coming into contact with hard drugs. Coffee shops are establishments where cannabis may be sold and used but no alcoholic drinks may be sold or consumed. As long as certain conditions and guidelines are met (discussed below), the public prosecutor’s office will not prosecute, under a policy of tolerance (gedoogbeleid). In addition, if anyone is caught with small quantities of drugs for personal use outside of a coffee shop, he or she will not be prosecuted.
A. Coffee Shops
The Opium Act Directive sets out the rules for the toleration policy applicable to the operation of coffee shops. Coffee shops are prohibited from
- possessing or selling hard drugs,
- causing a nuisance,
- allowing minors to enter the premises or selling soft drugs to them,
- selling more than a limited amount of soft drugs per transaction and having more than 500 grams in stock, and
- allowing nonresidents of the Netherlands to enter the premises and buy soft drugs.
The rules that the coffee shops need to adhere to are called “AHOJGI-criteria,” formed by the initial letters of the Dutch words for the individual criteria. The residency requirement came into effect on January 1, 2013. It was added in order to combat rising drug-related crime and nuisance caused by drug dealers and drug users, in particular users from abroad.
Within the national framework, local governments choose how to implement the criteria. They are also authorized to add additional criteria for the operation of coffee shops. Mayors are in charge of enforcement of the tolerance criteria. If a coffee shop does not adhere to the AHOJGI-criteria, the mayor is authorized to close the business.
Some cities like Amsterdam have chosen not to enforce the Dutch residency requirement in coffee shops, because they generate most of their income from tourists. The mayor of Amsterdam made that decision based on the coalition agreement presented by the new government in October 2012.
The national government also discussed adding a distance requirement from schools to the AHOJGI-criteria, which was supposed to go into effect on January 1, 2014. According to the plan, coffee shops had to be located at least 350 meters away from any schools that had students younger than 18 years. The plan was eventually discarded, but local authorities are free to adopt it nonetheless and most cities have established a distance requirement of 250 meters.
B. User Rooms
Some local authorities have also established so called “user rooms,” in which drug addicts may use their own drugs in a clean environment and will not become a nuisance for the public. The establishments are not allowed to provide or sell drugs. In general, social workers are present to offer therapy options. The use of drugs in “user rooms” is also tolerated by the prosecution.
C. Soft Drugs
The Directive for the Prosecution of Opium Act Offenses – Soft Drugs defines a small quantity of soft drugs for personal use as an amount of up to 5 grams. Likewise there is a presumption that the cultivating of no more than five cannabis plants is merely for personal use. Anyone who possesses or trades a small quantity of soft drugs or cultivates less than five plants for personal use will not be prosecuted. The directive states that the offender has to relinquish the drugs and that they will be taken out of circulation. For the possession of larger amounts of soft drugs, first-time offenders incur a fine; offenders who have been caught twice will either incur a fine or community service; and offenders who have committed multiple offenses will either have to pay a fine, do community service, or serve a prison sentence.
D. Hard Drugs
With regard to hard drugs, possession of small quantities of up to 0.5 grams/1 pill for personal use will also not be prosecuted. As with soft drugs, the offender will have to relinquish the drugs and they will be taken out of circulation. The prosecution of possession of larger amounts follows the same principle as the prosecution for possession of soft drugs with the difference that the fines are higher and the community service and prison time is longer.
III. Placement in an Institution for Habitual Offenders
In 2004, the Placement in an Institution for Habitual Offenders Act came into effect. It incorporates the Penal Care Facility for Addicts Act, which was adopted in 2001. The Act provides that addicts with a history of crime or habitual offenders in general may be committed to a special institution for intensive treatment for a period of at most two years. The offender’s detention is suspended on the condition that he or she undergoes treatment in such an institution.
Prepared by Jenny Gesley
Foreign Law Specialist
 Wet van 12 mei 1928, tot vaststelling van bepalingen betreffende het opium en andere verdoovende middelen (Opiumwet) [Act of May 12, 1928, Containing Regulations Concerning Opium and Other Narcotic Substances (Opium Act)], May 12, 1928, Staatsblad van het Koninkrijk der Nederlanden [Stb.] [Official Gazette of the Kingdom of the Netherlands] 1928, No. 167, http://wetten.overheid.nl/BWBR0001941/2016-05-01, archived at http://perma.cc/B2GM-HG5W, unofficial English translation available at http://www.emcdda.europa.eu/topics/ law/drug-law-texts?pluginMethod=eldd.showlegaltextdetail&id=2142&lang=en&T=2, archived at http://perma.cc/ YD3T-6UV4.
 Id. art. 10.
 Id. art. 1, para. 1d.
 Id. art. 1, para. 1b.
 Id. art. 1, para. 1c.
 Id. arts. 2, 3.
 Id. art. 5.
 Id. art. 8, para. 1.
 Why Are Coffee Shops Allowed to Sell Soft Drugs in the Netherlands?, Government of the Netherlands, https://www.government.nl/topics/drugs/contents/why-are-coffee-shops-allowed-to-sell-soft-drugs-in-the-netherlands (last visited June 29, 2016), archived at http://perma.cc/G64S-NCVM.
 Aanwijzing Opiumwet [Opium Act Directive], Mar. 1, 2015, Staatscourant [Stcrt.] [Official Journal] 2015, No. 5391, at 2, § 1, https://zoek.officielebekendmakingen.nl/stcrt-2015-5391.pdf, archived at http://perma.cc/ RMU3-ZKY2.
 Affichering [Advertising] – A; Harddrugs [Hard Drugs] – H; Overlast [Nuisance] – O; Jeugd [Minors] – J; Geringe Hoeveelheid [Limited Amount] – G; Ingezetenen van Nederland [Residents from the Netherlands – I.
 Government of the Netherlands, supra note 9.
 Opium Act Directive, at 6, § 3.4.
 Id. at 3, § 1.
 Opium Act art. 13b.
 Coffeeshops: Toeristen kunnen nog steeds in coffeeshops gebruiken in Amsterdam [Coffeeshops: Tourists Can Still Use in Coffeeshops in Amsterdam, I amsterdam, http://www.iamsterdam.com/nl/uit-in-amsterdam/ontdek-amsterdam/feiten-en-cijfers/coffeeshops (last visited June 29, 2016), archived at http://perma.cc/R9M3-9ZSS.
 Bert Bieleman et al., Coffeeshops in Nederland 2014 [Coffee Shops in the Netherlands 2014] at 5 (May 2015), available at https://www.rijksoverheid.nl/binaries/rijksoverheid/documenten/rapporten/2015/ 05/01/coffeeshops-in-nederland-2014/coffeeshops-in-nederland-2014.pdf, archived at http://perma.cc/Q6VY-B3Z8.
 Id. at 37.
 Opium Act Directive, at 3, § 2.
 Richtlijn voor strafvordering Opiumwet, softdrugs [Directive for the Prosecution of Opium Act Offenses – Soft Drugs], June 1, 2016, Stcrt. 2016, No. 23647, https://zoek.officielebekendmakingen.nl/stcrt-2016-23647.pdf, archived at http://perma.cc/2GEE-W6V4.
 Id. pp. 1 & 2.
 Richtlijn voor strafvordering opiumwet, harddrugs [Directive for the Prosecution of Opium Act Offenses – Hard Drugs], Mar. 1, 2015, Stcrt. 2015, No. 4953-n1, https://zoek.officielebekendmakingen.nl/stcrt-2015-4953-n1.pdf, archived at http://perma.cc/AM8N-38H4.
 Wet van 9 juli 2004 tot wijziging van het Wetboek van Strafrecht, het Wetboek van Strafvordering en de Penitentiaire beginselenwet (Plaatsing in een inrichting voor stelselmatige daders) [Act of July 9, 2004, Amending the Penal Code, the Code of Criminal Procedure, and the Prisons Act (Placement in an Institution for Habitual Offenders)], July 9, 2004, Stb. 2004, No. 351, https://zoek.officielebekendmakingen.nl/stb-2004-351.pdf, archived at http://perma.cc/P9JK-2SNZ.
Last Updated: 07/28/2016