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Belgium

Laws
Court rulings
Realities


Source: Joep Oomen

Last update: 26 July 2014


Laws

In Belgium, cannabis production or possession is not allowed by national law and is therefore considered a criminal offence for which a fine or prison sentence can be given. In 1997 a parliamentary working group made recommendations to the House of Representatives following several hearings regarding drug problems in the Belgian society. In 2001 the Federal Drug Note inventoried the state of implementation of the recommendations made by the parliamentary working group and translated them into concrete policy measures. Following the guidelines of the Federal Drug Note of 2001, the Belgian drug law was amended in 2003. The Drug Law now distinguished between cannabis and other illegal drugs, and criminal intervention with regard to the drug user was seen as the “ultimum remedium”. However, a 2005 joint guideline issued by the Minister of Justice and the College of Public Prosecutors set out that the lowest prosecution priority was to be given to the possession of cannabis. This refers to possession by adults of an amount suitable for personal use, which is to say quantities not exceeding 3 grams or 1 cultivated cannabis plant and without aggravating circumstances (such as committed in presence of a minor, committed in the activity of a criminal organisation, causing harm to another individual) or disturbance of the public order (i.e. possession of cannabis in prison or youth protection institute, possession of cannabis in an educational institute or in its immediate vicinity; possession of cannabis in a public place or place that is accessible for the public (‘Cannabis Social Clubs’ (CSCs) in Belgium: a growing phenomenon’ by Tom De Corte, Institute of Social Drug Research, University Ghent).

Regarding the therapeutic use of cannabis, the Belgian authorities recognize the benefits of their effects for some diseases. A Royal Decree of July 19, 2001 allows pharmacies to distribute medicines containing THC for a number of diseases ((nausea and inconveniences related with chemo- and radiotherapy, glaucoma, spasticity, multiple sclerose, aids wasting syndroom and  chronical pain, but only if they are prescribed by a doctor attached to a university hospital in the framework of clinical research. Until now no such prescription has taken place.

Court rulings

The Belgian Cannabis Social Club (CSC) ‘Trekt Uw Plant’ (‘Pull Your Plant’) is a non-profit organisation

 initiated in 2006, following the 2005 joint guideline. The purpose of Trekt Uw Plant is to demonstrate the possibilities of regulating cannabis production for personal use by adults in Belgium. The organisation provides its members the opportunity to produce cannabis collectively, one plant per person, in closed spaces not accessible to the public. It regularly distributes the harvest of these plants to its members  in three sections in Antwerp, Brussels and Mechelen. It has also a medicinal division, co-ordinated by a general doctor.

In December 2006, Trekt Uw Plant held a demonstration in Antwerp in which members of the club each “cropped a cutting of one female cannabis plant and placed that cutting in a peat pot”. After this manifestation, police confiscated the female cannabis plant and cuttings from the organisation’s premises. Subsequently  the Antwerp prosecution charged participants with possession of cannabis with the aggravating circumstance of participation in a criminal organisation, as stated in the Belgian Drug Law. The judge then ruled that there was no ground for dissolving Trekt Uw Plant since it was not a criminal organisation, as it was not demonstrated that the organization or  its members had the intention to trade in illegal substances in an organised way. Then in 2008 the Court of Appeal ruled that , in case the facts (cannabis  possession and/or cultivation) would be proven, it would be considered as acts for personal use, classified as a misdemeanour ( minor offence); however, as more than a year had then elapsed since the original offences were committed, the criminal prosecution had become time-barred and the Court of Appeal could not pronounce itself.

The second court case focused on two public protest demonstrations of Trekt Uw Plant in 2008 for which the organisation was accused of encouraging drug use. Details as noted in the court ruling reveal that the organisation wanted to ‘test’ the Belgian law through these  demonstrations and that it disagreed with Belgian drug legislation as it tolerates possession of cannabis while prohibiting cannabis purchase and production. In addition, during these manifestations members of the club planted cannabis seeds and distributed leaflets . In 2010, the Court of

Appeal acquitted the defendants as they, although their acts were provocative, did not encourage drug use. The net result of these cases is that while cannabis production is not allowed by Belgian law, Trekt Uw Plant has in fact been growing cannabis without law enforcement interference since 2010 (‘Multinational overview on cannabis production regimes’ by Rand Corporation, 2013).

Realities

A Belgian doctor (any kind of doctor) may prescribe cannabis  for any kind of indications. However, the only way to provide himself with that medicine in Belgium is by adhering to trekt uw Plant or to any of the other three Cannabis Social Clubs currently in existence. Most people prefer to obtain their cannabis in pharmacies in The Netherlands. The Dutch pharmacy will need to convince itself of the legitimate character of the prescription (control of the competence of the Belgian doctor). The pharmacist may only provide the medicine to a physical person – he is not allowed to send it by post. However, the Belgian patient must take into account the risk that once he imports the cannabis into belgium, it is looked upon as an illegal drug.

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