Scanned through this, quite interesting.
LJN: BO4015, Supreme Court, 09/01099 Print statement
Date statement: 26-04-2011
Publication date: 26-04-2011
Jurisdiction: Punishment
Type of procedure: Cassation
Inhoudsindicatie: OM appeal against inadmissible. Note Opium Act (Government Gazette 2000, 250) should be considered "law" within the meaning of Art. RO 79, since it contains rules on the policy principles in the investigation and prosecution of drug crimes. These rules may not apply as generally binding regulations, but does bind the OM under usual principles of due process and lend themselves against those involved as a legal rule should be applied (cf. HR LJN ZC8556). The Guideline should be interpreted - except by the PPS to be demonstrated to special circumstances and with time has been renounced by the confiscated plant material - cultivation of not more than five cannabis plants with a police dismissal is dismissed, regardless of the quantity or weight with those obtained from the crop yield or to obtain edible hemp or hemp products. Now the court has gone out of that explanation and no special circumstances are proved, the court has the right OM inadmissible in the prosecution.
Ruling
April 26, 2011
Criminal Division
No. 09/01099
Hoge Raad der Nederlanden
Judgement
on the appeal in cassation against a decision of the Court in 's-Hertogenbosch 17 December 2008, number 20/000247-08, in criminal proceedings against:
[Suspect], born [birth place] on [birth date] 1970, residing at [address].
1. Cassation proceedings
The action brought by the Attorney General before the Court. This writing has a way of cassation proposed. The scripture above is attached and forms part.
Counsel for the accused, Mr. J. Boksem, Leeuwarden Bar, has denied the appeal.
The Advocate General Vegter Court to dismiss the appeal.
2. Assessment of the drug
2.1. The plea alleges that the Court the prosecution wrongly, at least incomprehensible reasons
declared inadmissible in the prosecution.
2.2. The accused been charged:
"That on or about October 9, 2006 in the town of Roermond, together and in conjunction with another or others, at least alone, deliberately cultivated and prepared and edited and / or processed in any event, there have been willfully an amount of (total) about 2180 grams of hemp and / or about 5, at least some cannabis plants and / or parts (which plant weight was of 11,100 grams), in each case an amount of more than 30 grams of a material containing hemp, hemp being a drug as defined in the list that corresponds to the Opium Act II, or designated pursuant to the fifth paragraph of Article 3a of that law. "
2.3. The Court on the admissibility of the Public Prosecutor in the prosecution considered and decided the following:
"The defense has made the defense that the prosecutor in the prosecution of the accused inadmissible should be dismissed.
This requires (among others) argued that the prosecutor acts in conflict with the responsibility of the prosecution established tolerance by the defendant to prosecute for the production or the possessing five cannabis plants and possessing the separated from the hemp plant product.
The attorney general has moved to dismiss the admissibility hearing.
The Court considers as follows.
The suspect invokes the responsibility of the prosecution established in the Opium Note dated November 2, 2000 (Government Gazette 2000, 250) - as amended by the Opium Act Designation of February 6, 2002 (Government Gazette 2002, 1946) - and the Directive on criminal Opium, cannabis dated November 2, 2000 (Government Gazette 2000, 250) laid down and published "tolerance" with regard to growing or possessing more than five cannabis plants. The court will examine the accused deserves a job on this.
In this regard, the first court in this case established that the police on October 9, 2006 in the garden of the house of the accused in the open four cannabis plants and the stump of one fifth found hemp plant. It can therefore be concluded that the accused on October 9, 2006 no more than five cannabis plants had been cultivated or present.
In the chapter "Investigation and prosecution" of the Instruction Opium Act ("the Note) in paragraph 2 (titled" Funds listed in Schedule II b (hemp products), other than an amount of less than 30 grams) under More information:
2.2.1 Cultivation of cannabis.
In connection with the implementation of the Act of March 18, 1999 amending the Opium Act in connection with the introduction of increased penalties for professional and commercial hemp belongs to distinguish between growing and professional or commercial cultivation. For the record: here are under cultivation, but cultivation in the linguistic meaning of this word also means the other Article 3 B of the Opium Act.
(...)
Not business culture
In the cultivation of not more than five plants is assumed that there is no professional or commercial cultivation. It follows police dismissal upon discovery with distance. No commercial cultivation of a small amount for personal use is, if the suspect is an adult, not a priority.
Paragraph 4 of the chapter Investigation and prosecution of Designation as a general principle regarding the resources listed in Schedule II b (hemp products) expressed
The limit of what is tolerated with respect to the sale of hemp products coffee shops has been set at 5 grams. It is reasonable in principle, the same threshold should apply in respect of the possession of hemp products. Up to 5 grams, the small amount for personal use, police dismissal is therefore applied.
The Note is further contemplated that the focus is on professional or commercial cultivation, which shall include the amount of plants and number of harvests per year can be achieved, a role, and also that the reason is for growing a targeted scheme to use as living plant material quickly the weight limit will exceed 5 grams.
The court notes that the Note and the Directive on criminal Opium, cannabis (hereinafter: the Directive) in respect of not professional or commercial basis to treat growing hemp plants only a numerical limit on the quantity of hemp plants in principle without the risk of prosecution should be cultivated and that these policies do not provide further details regarding eg the maximum permitted size of the marijuana plants or their expected harvest. In view of this means the court the instructions and guidance so that the growth or the presence of not more than five cannabis plants - what the other specifications of those plants - in principle to criminal prosecution, but is undermined by a (police) dismissal . The condition is, as the court read the provisions of section 2.2.1 of the Note under the heading "Non-commercial cultivation, those of whom no more than five cannabis plants are found, immediately discontinue them for destruction.
Now in this case the quantity found hemp plants within the tolerance area of five plants remained and by the defendant and the co-defendant [co-defendant 1], as shown by them to the police statements made clear, once waived the found cannabis plants, is the opinion of the court in principle as a starting point the fact that the defendant was confident that with regard to the growing or possessing cannabis plants that no criminal prosecution would be brought against it.
By the Advocate General at the policy admissibility defense include introduced, in short, that the tolerance in this case does not apply because the accused on October 9, 2006 not only the aforementioned hemp plants cultivated or present it, but also other Opium covered by the criminal conduct committed (namely possessing a quantity of hemp with a total weight of 2180 grams), which does not comply with the instructions and guidelines provided in the conditions tolerated.
The court is considering this matter as follows.
The story of compiling it [reporting officer 1] (file page 4) that he - the court understands: on October 9, 2006 - saw the co-defendants [co-defendant 1 and 2] in the backyard of the home of accused were engaged in cutting hemp plants and that, [a reporting officer], when he was in the backyard of that house was, saw that there were five cannabis plants, which one has already been cut. The court notes that the pictures in the file (page 19, pictures 1 and 2 and the left image of the middle row) clearly cut the hemp plant and the four not cut hemp plants are visible.
The story of compiling it [reporting officer 2] (file page 16) shows that on October 9, 2006 a party hemp buds with a total weight of 400 grams, which came from a bedroom on the first floor of the house of the accused, and a party hemp buds with a total weight of 1780 grams, which - as the court understands - also the address of the suspect came in and confiscated. From 6 photo on page 19 of the file leads the court concludes that the hemp buds weighing 400 grams, which were found in the bedroom, were placed there to dry. The court takes this into account that the co-defendant [co-defendant 2] to the police stated (file page 22), in short, that he and [co-defendant 1] said on October 9, 2006 in the backyard of the house of the accused were engaged in cutting the hemp plant, that - when the police entered defendant's home - just the first plants were cut and that [co-defendant 1], the peaks of the first plant was brought inside to let it dry.
Also believes the court expected that with hemp buds with a weight of 1780 grams of hemp tops meant that found in the garbage to the cutting device is attached, and the trimming waste that was in the bag at the bottom of the cutting device, a and different as can be seen on page 19, photo 4, the dossier. Again, looking for the court to join the co-defendant [co-defendant 2] to the police statement made, as far as it implies that he and [co-defendant 1], the hemp plant quivered and cut twigs in the cutting machine did, and the shears the tops cut and collected in plastic garbage matter, while the tissue to the underside of the machine fell into the collection. On page 19, photo 5, apparently the contents of the aforementioned trash visible.
Based on the above and in the absence of evidence to the contrary to the opinion of the court in this case as established be assumed that the loose hemp products (tops and tails) with a total weight of 2180 grams come from the co-defendants [1 and 2 co-defendant] cut hemp plant, the stump was still in the ground.
Unlike the Advocate General, the court considers - into account, as considered above, that the prosecution established and published policies do not provide further details concerning eg the level of the cultivation of not more than five hemp plants to acquire quantities separated hemp products - one citizen, who may legitimately assume that the government is not a criminal act against the property of not more than five cannabis plants, take reasonable also faith that no criminal proceedings against the possession of separate hemp plants from the same product. The court takes this into account it is not difficult to see, would be public at this point otherwise need to be explained, what the citizens the added value of the tolerance of growing or possessing more than five cannabis plants and not these plants would be harvested for the personal use of the separated hemp product. It should be noted that the court officially known is that the plants of the genus Cannabis simply be grown in order to harvest the tops these plants at some point commit to form, which peaks in general the highest level of active substance (THC) contained. The court takes this further into account that already in 2000, public note states that the reason is for the cultivation of cannabis plants (adding court: that here is not professional or commercial cultivation meant) a targeted scheme to handle living plant material as soon the weight limit will exceed 5 grams.
Special circumstances under which the defendant in this case not should rely on criminal proceedings are not merged - such as the simultaneous possession of not more than five cannabis plants and possession of a quantity of loose hemp products with a weight above the tolerance limit of 5 grams, when hemp products clearly not of the same hemp plant from (possibly) or possession of a quantity or quantities of loose hemp products, the nature and extent cause to suspect that there is commercial - are not plausible.
Given the foregoing, the court, the defense, concluded that the prosecution in this case violated the principles of due process by, contrary to the above instructions and guidance provided, the suspect to be prosecuted for growing or possessing it on 9 October 2006 of five cannabis plants and a quantity of the same hemp plant derived products.
The prosecution in criminal proceedings should therefore be declared inadmissible. "
2.4. The Court said Opium Designation of November 2, 2000, Government Gazette. 2000, 250 (hereinafter information) is, so far as relevant here, as follows:
"(...)
2. Cannabis Cultivation
(...)
Under vigor of the new legislation, these instructions and the directive for prosecution of soft drugs Opium two situations: there is either professional or commercial crop, or any professional or commercial cultivation.
(...)
When a quantity of 5 or less plants is assumed that there is no professional or commercial trade. This situation is treated equally as the situation where it is found that there is a small quantity for personal use. In those cases following dismissal by far, the motive 'minor offense'.
(...)
Investigation and prosecution:
Because of the diversity of offenders is the clue-ranging. This makes differentiation possible. Nevertheless, there are reasons to depart from the designation. The accused has a role in the whole, can play an important consideration. If abnormalities occur more than occasionally, the chief prosecutor submit it to the College.
(...)
1. Resources listed in Schedule I (hard drugs), other than possession of a small amount for personal use
(...)
2. Resources referred to in Schedule II b (hemp), other than an amount of less than 30 grams
(...)
2.2.1. Cultivation of cannabis
In connection with the implementation of the Law of 18 March 1999 amending the Opium Act in connection with the introduction of increased penalties for professional and commercial hemp belongs to distinguish between culture and professional and business culture.
For the record: here are under cultivation, but cultivation in the linguistic meaning of this word also means the other in Article 3, paragraph B of the Opium Act.
(...)
Also growing is the amount of plant material of interest in the deliberations surrounding the investigation and prosecution. It is reasonable for the focused system to handle growing a living plant material as quickly weight limit will exceed 5 grams.
Priority is the professional / commercial cultivation. In determining what professional / commercial crop, the following factors play a role:
- The scale of cultivation:
- The quantity of plants, at least more than 5;
- The type of field where grown.
- Indicators related to lighting, heating, irrigation, etc. (listed in Annex 1);
- The role of the suspect: for example, whether it's for a long time to invest in growing hemp in order to obtain monetary gain?
(...)
Not business culture
In the cultivation of not more than five plants is assumed that there is no professional / commercial cultivation. It follows police dismissal upon discovery with distance. No commercial cultivation of a small amount for personal use is, if the suspect is an adult, not a priority. Cultivation by minors is always lead to a criminal response.
(...)
4. An amount less than 30 grams of resources referred to in Schedule II b
The limit of what is tolerated with respect to the sale of hemp products by coffee shops has been set at 5 grams. It is reasonable in principle, the same threshold should apply in respect of the possession of hemp products. Up to 5 grams, the small amount for personal use, police dismissal is therefore applied. In amounts between 5 and 30 grams of discovery follows a criminal response.
Detection: no targeted search. "
2.5. The appeal in the core against the Court considers that the prosecution in this matter acted contrary to the principles of due process by the accused in conflict with the 2.4 shall Designation to be prosecuted for growing or possessing five cannabis plants and a quantity of the same hemp plant derived products.
2.6. When assessing the means must be provided that rules contained in the above Note should be regarded as legal in the sense of Art. 79 RO. Note the fact contained rules on the policy principles in the investigation and prosecution of drug crimes. This pursuit of the policy of the prosecution relating to and duly published rules may indeed not be construed as generally binding regulations because they are not under any legislative powers are given, but binding does the prosecution on the basis of principles of due process and lend themselves to their nature and purpose to respect the law involved and should be used (see HR 19 June 1990, LJN ZC8556, NJ 1991/119).
2.7. The Guideline should be interpreted as meaning that - except by the prosecution to establish and plausible exceptional circumstances, and when time is renounced the confiscated plant material - with a police dismissal is undermined the cultivation of not more than five cannabis plants, regardless of the amount or weight of the crop obtained with or acquire proceeds of edible hemp or hemp products.
2.8. Since the Court in the contested decision of the explanation is based and has held that special circumstances as mentioned above is not shown, gives his opinion that the prosecution is inadmissible in the proceedings must be declared no sign of an error of law and it is not incomprehensible.
2.9. The agent meets with accordingly.
3. Decision
The Supreme Court rejected the appeal.
This ruling was given by the Vice-President Dorsey AJA as chairman and the justices BC Savornin Lohman, JW Ilsink, WF CHWM Groos and Strong, in the presence of the Registrar SP Baker, and pronounced on April 26, 2011.
Conclusion
Nr. 09/01099
Mr. Vegter
Session 9 November 2010
Conclusion on:
[Accused]
1. The Court of 's-Hertogenbosch - to set aside a verdict of conviction - by order of December 17, 2008 the prosecution inadmissible in the prosecution of suspects.
2. On behalf of the Public Prosecution Mr. H. van der Meijden, Advocate General at the Court 's-Hertogenbosch, appealed. Mr. L. Plas, Deputy Attorney General at the Court 's-Hertogenbosch, has filed a filed on a means of appeal. Mr. J. Boksem, lawyer to Leeuwarden, the appeal on behalf of defendant contradicted.
3.1. The plea includes the complaint that the Court the prosecution wrongly declared inadmissible.
3.2. Been charged to the suspect that:
"They are on or about October 9, 2006 in the town of Roermond, together and in conjunction with another or others, at least alone, deliberately cultivated and prepared and edited and / or processed in any case had deliberately present a amount of (total) about 2180 grams of hemp and / or about 5, at least some cannabis plants and / or parts (which plant weight was of 11,100 grams), in each case an amount of more than 30 grams of a material containing hemp, hemp being a drug as defined in the list that corresponds to the Opium Act II, or designated pursuant to the fifth paragraph of Article 3a of that law. "
3.3. The Court rejected the prosecution inadmissible in the prosecution of the suspect. The contested statement implies this subject the following:
"The admissibility of the prosecution
The defense has made the defense that the prosecutor in the prosecution of the accused inadmissible should be dismissed.
This requires (among others) argued that the prosecutor acts in conflict with the responsibility of the prosecution established tolerance by the defendant to prosecute for the production or the possessing five cannabis plants and possessing the separated from the hemp plant product.
The attorney general has moved to dismiss the admissibility hearing.
The Court considers as follows.
The suspect invokes the responsibility of the prosecution established in the Opium Note dated November 2, 2000 (Government Gazette 2000, 250) - as amended by the Opium Act Designation of February 6, 2002 (Government Gazette 2002, 1946) - and the Directive on criminal Opium, cannabis dated November 2, 2000 (Government Gazette 2000, 250)
submitted to and published "tolerance policy" regarding the growing or possessing more than five cannabis plants. The court will examine the accused deserves a job on this.
In this regard, the first court in this case established that the police on October 9, 2006 in the garden of the house of the accused in the open four cannabis plants and the stump of one fifth found hemp plant. It can therefore be concluded that the accused on October 9, 2006 no more than five cannabis plants had been cultivated or present.
In the chapter "Investigation and prosecution" of the Instruction Opium Act ("the Note) in paragraph 2 (titled" Funds listed in Schedule II b (hemp products), other than an amount of less than 30 grams) under More information:
2.2.1 Cultivation of cannabis.
In connection with the implementation of the Act of March 18, 1999 amending the Opium Act in connection with the introduction of increased penalties for professional and commercial hemp belongs to distinguish between growing and professional or commercial cultivation. For the record: here are under cultivation, but cultivation in the linguistic meaning of this word also means the other Article 3 B of the Opium Act.
(...)
Not business culture
In the cultivation of not more than five plants is assumed that there is no professional or commercial cultivation. It follows police dismissal upon discovery with distance. No commercial cultivation of a small amount for personal use is, if the suspect is an adult, not a priority.
Paragraph 4 of the chapter Investigation and prosecution of Designation as a general principle regarding the resources listed in Schedule II b (hemp products) states:
The limit of what is tolerated with respect to the sale of hemp products coffee shops has been set at 5 grams. It is reasonable in principle, the same threshold should apply in respect of the possession of hemp products. Up to 5 grams, the small amount for personal use, police dismissal is therefore applied.
The Note is further contemplated that the focus is on professional or commercial cultivation, which shall include the amount of plants and number of harvests per year can be achieved, a role, and also that the reason is for growing a targeted scheme to use as living plant material quickly the weight limit will exceed 5 grams.
The court notes that the Note and the Directive on criminal Opium, cannabis (hereinafter: the Directive) in respect of not professional or commercial basis to treat growing hemp plants only a numerical limit on the quantity of hemp plants in principle without the risk of prosecution should be cultivated and that these policies do not provide further details regarding eg the maximum permitted size of the marijuana plants or their expected harvest. In view of this means the court the instructions and guidance so that the growth or the presence of not more than five cannabis plants - what the other specifications of those plants - in principle to criminal prosecution, but is undermined by a (police) dismissal . The condition is, as the court read the provisions of section 2.2.1 of the Note under the heading "Non-commercial cultivation, by those among whom not more than five cannabis plants are found, immediately discontinue them for destruction.
Now in this case the quantity found hemp plants within the tolerance area of five plants remained and by the defendant and the co-defendant [co-defendant 1], as shown by them to the police statements made clear, once waived the found cannabis plants, is the opinion of the court in principle as a starting point the fact that the defendant was confident that with regard to the growing or possessing cannabis plants that no criminal prosecution would be brought against it.
By the Advocate General at the policy admissibility defense include introduced, in short, that the tolerance in this case does not apply because the accused on October 9, 2006 not only the aforementioned hemp plants cultivated or present it, but also other Opium covered by the criminal conduct committed (namely possessing a quantity of hemp with a total weight of 2180 grams), which does not comply with the instructions and guidelines provided in the conditions tolerated.
The court is considering this matter as follows.
The story of compiling it [reporting officer 1] (file page 4) that he - the court understands: on October 9, 2006 - saw the co-defendants [co-defendant 1 and 2] in the backyard of the home of accused were engaged in cutting hemp plants and that, [a reporting officer], when he was in the backyard of that house was, saw that there were five cannabis plants, which one has already been cut. The court notes that the pictures in the file (page 19, pictures 1 and 2 and the left image of the middle row) clearly cut the hemp plant and the four not cut hemp plants are visible.
The story of compiling it [reporting officer 2] (file page 16) shows that on October 9, 2006 a party hemp buds with a total weight of 400 grams, which came from a bedroom on the first floor of the house of the accused, and a party hemp buds with a total weight of 1780 grams, which - as the court understands - also the address of the suspect came in and confiscated. From 6 photo on page 19 of the file leads the court concludes that the hemp buds weighing 400 grams, which were found in the bedroom, were placed there to dry. The court takes this into account that the co-defendant [co-defendant 2] to the police stated (file page 22), in short, that he and [co-defendant 1] said on October 9, 2006 in the backyard of the house of the accused were engaged in cutting the hemp plant, that - when the police entered defendant's home - just the first plants were cut and that [co-defendant 1], the peaks of the first plant was brought inside to let it dry.
Also believes the court expected that with hemp buds with a weight of 1780 grams of hemp tops meant that found in the garbage to the cutting device is attached, and the trimming waste that was in the bag at the bottom of the cutting device, a and different as can be seen on page 19, photo 4, the dossier. Again, looking for the court to join the co-defendant [co-defendant 2] to the police statement made, as far as it implies that he and [co-defendant 1], the hemp plant quivered and cut twigs in the cutting machine did, and the shears the tops cut and collected in plastic garbage matter, while the tissue to the underside of the machine fell into the collection. On page 19, photo 5, apparently the contents of the aforementioned trash visible.
Based on the above and in the absence of evidence to the contrary to the opinion of the court in this case as established be assumed that the loose hemp products (tops and tails) with a total weight of 2180 grams come from the co-defendants [1 and 2 co-defendant] cut hemp plant, the stump was still in the ground.
Unlike the Advocate General, the court considers - into account, as considered above, that the prosecution established and published policies do not provide further details concerning eg the level of the cultivation of not more than five hemp plants to acquire quantities separated hemp products - one citizen, who may legitimately assume that the government is not a criminal act against the property of not more than five cannabis plants, take reasonable also faith that no criminal proceedings against the possession of separate hemp plants from the same product. The court takes this into account it is not difficult to see, would be public at this point otherwise need to be explained, what the citizens the added value of the tolerance of growing or possessing more than five cannabis plants and not these plants would be harvested for the personal use of the separated hemp product. It should be noted that the court officially known is that the plants of the genus Cannabis simply be grown in order to harvest the tops these plants at some point commit to form, which peaks in general the highest level of active substance (THC) contained. The court takes this further into account that already in 2000, public note states that the reason is for the cultivation of cannabis plants (adding court: that here is not professional or commercial cultivation meant) a targeted scheme to handle living plant material as soon the weight limit will exceed 5 grams.
Special circumstances under which the defendant in this case not should rely on criminal proceedings are not merged - such as the simultaneous possession of not more than five cannabis plants and possession of a quantity of loose hemp products with a weight above the tolerance limit of 5 grams, when hemp products clearly not of the same hemp plant from (possibly) or possession of a quantity or quantities of loose hemp products, the nature and extent cause to suspect that there is commercial - are not plausible.
Given the foregoing, the court, the defense, concluded that the prosecution in this case violated the principles of due process by, contrary to the above instructions and guidance provided, the suspect to be prosecuted for growing or possessing it on 9 October 2006 of five cannabis plants and a quantity of the same hemp plant derived products. The prosecution in criminal proceedings should therefore be declared inadmissible.
What the defense is raised further, need based on the above discussion does not. "
3.4. Note the Opium Act (Government Gazette 2000, 250), as amended by the Opium Act Designation of February 6, 2002 (Government Gazette 2002, 1946) (1) (hereinafter Note) includes the following:
"2. Cannabis Cultivation
(...) Under the vigor of the new legislation, these instructions and the directive for prosecution of soft drugs Opium two situations: there is either professional or commercial crop, or any professional or commercial cultivation.
To determine whether occupational or commercial trade exists and the extent thereof, may be made to a number of indicators. These indicators are listed in Annex 1 to this designation.
When a quantity of 5 or less plants is assumed that there is no professional or commercial trade. This situation is treated equally as the situation where it is found that there is a small quantity for personal use. In those cases following dismissal by far, the motive 'minor offense'.
(...)
Investigation and prosecution
Because of the diversity of offenders is the clue-ranging. This makes differentiation possible. Nevertheless, there are reasons to depart from the designation. The accused has a role in the whole, can play an important consideration. (...)
2. Resources referred to in Schedule II b (2) (hemp), other than an amount of less than 30 grams
The prohibited transactions with funds listed in Schedule II, part b (hemp), Article 3, paragraph (and 3b: disclosure) of the Opium defined. These are two groups of offenses:
- Inside or outside the territory of the Netherlands (2.1.)
- Creation and present, and whether or not in the exercise of a profession or business: growing, preparing, treating, processing, sale, supply, supply and transportation. (2.2.)
(...)
2.2 Creation and present, and whether or not the exercise of a profession or business: growing, preparing, treating, processing, sale, supply, supply and transportation.
2.2.1. Cultivation of cannabis
In connection with the implementation of the Law of 18 March 1999 amending the Opium Act in connection with the introduction of increased penalties for professional and commercial hemp belongs to distinguish between culture and professional and business culture.
For the record: here are under cultivation, but cultivation in the linguistic meaning of this word also means the other in Article 3, paragraph B of the Opium Act.
(...)
Also growing is the amount of plant material of interest in the deliberations surrounding the investigation and prosecution. It is reasonable for the focused system to handle growing a living plant material as quickly weight limit will exceed 5 grams.
Priority is the professional / commercial cultivation. In determining what professional / commercial crop, the following factors play a role:
- The scale of cultivation:
. the quantity of plants, at least more than 5;
. the type of field where grown.
- Indicators related to lighting, heating, irrigation, etc. (listed in Annex 1);
- The role of the suspect: for example, whether it's for a long time to invest in growing hemp in order to obtain monetary gain?
If it is met more than two items mentioned in the list of indicators related to the degree of professionalism, as contained in Annex 1, the guideline for criminal Opium, cannabis, an increase of fining.
Not business culture
In the cultivation of not more than five plants is assumed that there is no professional / commercial cultivation. It follows police dismissal upon discovery with distance. No commercial cultivation of a small amount for personal use is, if the suspect is an adult, not a priority. Cultivation by minors is always lead to a criminal response.
(...)
4. An amount less than 30 grams of resources referred to in Schedule II b
The limit of what is tolerated with respect to the sale of hemp products by coffee shops has been set at 5 grams. It is reasonable in principle, the same threshold should apply in respect of the possession of hemp products. Up to 5 grams, the small amount for personal use, police dismissal is therefore applied. In amounts between 5 and 30 grams of discovery follows a criminal response.
Detection: no targeted search.
(...)
Annex 1
Indicators for professional action with respect to the cultivation of cannabis.
a. amount of plant more than 5.
b. Professionalism
Professionalism Low High
Exposure to artificial light timers
Food watering centrally controlled irrigation system
Room balcony, separate room in the home garden
cash or large, distributed and screened room
Shielding is not isolated with regard to light and temperature
No exhaust ventilation to the outside
Heating does not
Thermostat controlled
Earth soil, compost rockwool, hydroponics
Disease does not
Signaling Sheets, biological
Processing small in-house to outsourced business manicultuur
Planting material selected unknown seed seed
own plants from cuttings or purchased externally
CO2 supplementation is not controlled plant "
3.5. The Directive on criminal Opium, cannabis (Government Gazette 2000, 250) (3) (hereinafter: the Directive) includes the following:
"Description
This Directive focuses on violation of Art. 3 in connection with Art. 11 of the Opium Act.
The prohibitions relate to the possession, trading, planting, production and cross-border transport of drugs. Among soft drugs in this Directive are Resources of List II of the Opium Act.
When evaluating the predicate offenses, in addition to the type of operation, the weight of the soft drugs such as assessment factor to be considered.
(...)
Basic Offences
- Present, not professional or commercial growing and marketing of soft drugs
- Vocational or commercial growing and marketing of soft drugs
(...)
Basic Offence present, not professional or commercial growing and marketing of soft drugs
Description
This covers basic offense on possession of soft drugs and the non-professional or commercial cultivation or trafficking in there.
(...)
Basic Factors
Weight of soft drug soft drug offenses other
- Disc 1: the part between 30 and 1000 grams - 1 / 2 x 0.082 points per gram
- Disc 2: the part between 1000 and 5 g kg - 1 / 2 x 0.023 points per gram
- Disc 3: the area between 5 and 25 kg - 1 / 2 x 0.009 points per gram
- Disc 4: the portion above 25 kg - 1 / 2 x 0.003 points per gram
Number of cannabis plants other soft drug offenses
- Disc 1: the part between 6 and 200 plants - 1 / 2 x 0.41 points per plant
- Disc 2: the part between 200 and 1000 plants - 1 / 2 x 0.115 points per plant
- Disc 3: the part between 1000 and 5000 plants - 1 / 2 x 0.045 points per plant
- Disc 4: the part above 5000 plants - 1 / 2 x 0.015 points per plant
(...)
Particulars
Is this offense to a maximum quantity of 5 grams (so-called volume users) or up to five plants than is a (police) dismissal in reason.
To calculate the weight of soft drugs is (more than 5 plants), a hemp plant treated with 5 grams (4).
The available funds have up to 30 grams of part B (Hemp) List II is a violation.
(...)
Basic Offence professional or commercial growing and marketing of soft drugs
Description
This relates to the basic offense in the exercise of a profession or business grow, prepare, edit, process, sell, deliver, provide, transport, sell and / or delivering drugs.
(...)
Basic Factors
Weight of soft drugs import / export and wholesale trading / breeding
- Disc 1: the part between 30 and 1000 grams - 0.082 points per gram
- Disc 2: the part between 1000 g and 5 kg - 0.023 points per gram
- Disc 3: the area between 5 and 25 kg - 0.009 points per gram
- Disc 4: the portion above 25 kg - 0.003 points per gram
Number of hemp plants in import / export and wholesale trading / breeding
- Disc 1: the part between 6 and 200 plants - 0.41 points per plant
- Disc 2: the part between 200 and 1000 plants - 0.115 points per plant
- Disc 3: the part between 1000 and 5000 plants - 0.045 points per plant
- Disc 4: the part above 5000 plants - 0.015 points per plant
(...)
Particulars
To calculate the weight of soft drugs is (more than 5 plants) 1 equivalent to 5 grams of cannabis plant. "
3.6. Dutch drug policy and gave still gives rise to much discussion. This is highlighted in this case pregnant now even different rooms of the Court 's-Hertogenbosch (see 3.16) to a different explanation of the contents of the drug policy for the prosecution as concerns the presence of plants separated hemp. The starting point of drug policy is the distinction made between the Opium Act drugs with an unacceptable risk to public health (hard drugs) and drugs with a lower risk (soft drugs). The distinction is made in view of the risks of using drugs and to distinguish a clear distinction between these two markets. The underlying idea is that cannabis users from the much harsher and criminal environment of hard drugs market should be taken. (5) In practice, this policy it means that in the context of the coffee shop policy and user spaces (6) there is tolerance offenses. The basis of this so-called policy of tolerance lies in the balancing of interests which the importance of enforcement to make way for a more identifiable public interest, namely health (division of markets) and public order. This is a positive decision not to investigate and prosecute, regardless of available capacity. The Note is also mentioned other issues of low priority to criminal investigation, as to possessing a quantity of drug users. The granting of a low priority investigation is generally located in the relative seriousness of the offense compared to capacitaire considerations (7).
It is not that some of the Opium Act violations are not punishable. That they are. But certain facts are tolerated and others have a low investigative priority.
3.7. Furthermore, I would point out that, as the author rightly points of the plea, the Note and the Directive should be regarded as 'law' within the meaning of Art. 79 RO. Designation and the Directive on Art. 130, fourth paragraph, RO-based general guidance on the exercise of functions and powers of the Public Ministry, which lend themselves to third parties as applicable law. They were drafted by the Board of Procurators-General established and well published rules regarding the exercise of policies of the Public Ministry, which, although not suitable as a general binding rules because they are not under any legislative powers are given, but the Public Ministry or under principles of due process binding, and that their content and scope to borrow against those involved as the legal rules should be applied. (8) The Note and others had come under the Directive can borrow more or acts performed by them on soft drugs will actually be prosecuted or not. (9) Violate policy may result in the inadmissibility of the prosecution lead (10). The fact remains that the prosecution may be motivated to deviate from instructions and directives set priorities (11).
3.8. The Court in this case included the following facts were established:
- In the garden of the suspect in the ground four cannabis plants and the stump of one fifth found hemp plant;
- The defendant and her co-accused have waived once the plants;
- At the residence of the accused was a party hemp buds weighing 400 grams were found. Furthermore, in a garbage bag on a cutting device was attached a lot hemp buds with a weight of 1780 grams were found. (12) In the opinion of the Court, as established to assume that the loose hemp products with a total weight of 2180 grams from the cut plant whose trunk was still in the ground.
3.9. The appeal first challenges the finding of the Court that the producer or the possessor of not more than five cannabis plants at his confidence may not be criminally prosecuted, regardless of the amount that hemp plants produce. This assessment follows according to the author of the drug from the Instruction and the Directive and is therefore wrong or incomprehensible. That the situation in which there is an amount of five plants (or less) equal treatment as the situation where there is a small amount for personal use, signifies that the author - now a small amount is an amount up to five grams - a grower just do not "trade or business" grower if it is likely that the five plants producing no more than a small quantity of hemp intended for personal use.
3.10. The, to under 3.4 and 3.5 extensively shown, instructions and guidelines imply a distinction between two situations: there is either professional or commercial crop, or any professional or commercial cultivation. To determine whether occupational or commercial trade exists and the extent thereof, may be made to a number of indicators. One of these indicators is that at least there should be a quantity of more than five plants. The note also contains a number of indicators to assess the level of professionalism to fix. At levels of five plants or less is considered that there is no appeal or commercial trade. This situation is treated similarly to the situation where it is found that there is a small quantity for personal use. Of a small amount exists in an amount up to five grams. In those cases, however, police dismissal with distance.
3.11. The Court considered the Note and the Directive thus interpreted that the distinction between professional and commercial production and no professional or commercial crop only the quantity of plants is important and that these policies do not provide further details regarding eg the maximum size of the hemp plants or their expected harvest. (13) This explanation seems not incorrect, nor incomprehensible. That is not all for the explanation of the plea, the author. That is not a professional or commercial growers suddenly turns into a professional and commercial grower and the five plants produce more than a small quantity of hemp intended for personal use, is not due to the instructions and guidance. As the Court has held with accuracy, set the Instruction Directive and no further demands on the five plants that tolerated.
Here is the explanation of the author of the means (linguistic) incomprehensible. That the situation in which there is an amount of five plants (or less) equal treatment as the situation where there is a small amount for personal use only means - as there is literally so - that these cases are treated equally. That is my opinion, nothing more or less say that apparently according to the College of Attorneys General in both cases there is a small fact that can be dealt with by a police dismissal. It does not mean that the two situations are identical. It does not mean that the five plants more than a small quantity for personal use, in the Note over a maximum five grams may cause. That's simply not. I have even wondered whether it is possible that what is meant is five plants that together have a weight of not more than five grams. If five plants only have a weight of five grams may have it is apparently not allowed to plant more than one gram to grow. This means that only the possession of five (small) clones not be persecuted. That explanation, I can not read the instructions and guidance. Such an explanation seems inconsistent with the other contents of the Instruction. The note consists in the Investigation and prosecution chapter, section 2.2.1, in that while also growing the amount of plant material is crucial to the considerations surrounding the investigation and prosecution, but that the reason lies in the cultivation of plants targeted scheme to handle, because living plant material quickly weight limit will exceed five grams. I think that can hardly be interpreted otherwise than that the weight limit of five grams is not fully apply to living plant material. This will therefore have been the reason that living plant material, the border was set at five plants. It is in this context already understood that the weight of a plant more than five grams can be.
3.12. The plea in the second place on the opinion of the Court that no criminal should be taken against those possessing hemp products, if and to the extent that hemp products are separated by five cannabis plants. Again, this assessment does not arise from the above instructions and guidance and is therefore wrong, or at least incomprehensible. Neither the Note nor any other rule of law precludes a separate criminal matter having loose, of not more than five cannabis plants separated, hemp products, if the weight limit of five grams outweigh, according to the author of the plea.
3.13. The Court found that as said by the accused (already harvested) hemp with a total weight of 2180 grams was found. The Court held that it must be assumed as established that the hemp comes from a plant whose trunk was still in the ground. The total weight does need some qualification. The first of these is the Court all the confiscated material, including the trimming waste. Secondly, it, as far as the actual hemp tops, to supply the so-called wet harvesting. These summits have yet to be dried. The final amount of hemp which is suitable to be smoked, will therefore be less than 2180 grams (14).
3.14. I like the discussion of the first complaint from a've already put, according to the indication in the cultivation of not more than five plants assumed that there is no professional or commercial cultivation. This situation is treated equally as the situation where it is found that there is a small quantity for personal use. In discovery follows a police dismissal with distance. If the accused is an adult, has no commercial cultivation of such a small amount for personal use is not a priority. Regarding the possession of hemp products, the note that to five grams, the small quantity for personal use, also a police dismissal is applied. As for quantities between five and thirty grams is that no specific investigation is conducted, but that discovery is a criminal response follows. (15) The Guideline nor the Directive contains rules on how to deal with the proceeds of the five plants.
3.15. If I appeal proceedings here are disregarded, there are two ways to use the proceeds from the five plants to approach. Because no specific instructions and guidelines include provisions for return of five plants might argue that the yield of the plants is what is the plants themselves. Conversely, the absence of accurate and specific rules be deduced that there is no basis for not prosecuting the possessing the proceeds of the plants.
The first way is that of the Court. A citizen who may legitimately assume that the government is not a criminal act against the property of not more than five cannabis plants, there should be reasonably well assured that no criminal proceedings against the possession of these plants separated hemp product. Although not explicitly in the Note nor the Directive is, it seems unlikely that the Board of Procurators General has referred only to the growing and / or possessing more than five plants is not a criminal will be taken and not apply for the harvesting of such plants if the crop exceeds five grams. If it is assumed that people of hemp plants are generally not as decoration in their garden (or house) in them, it is hard to see why different policies on this point. It seems that the limit of five grams in such cases to handle. As noted in the Instructions will soon living plant material weight limit exceeds five grams. Therefore, the limit fixed by the crop in terms of five plants. Comparing five grams of living plant material with five grams of hemp from a coffee shop is also comparing apples to oranges. The five grams of hemp from the coffee shop there, can supposedly from dried buds and is suitable to be smoked. What the (raw) five grams of living plant material is very questionable. Difficult to see why there is a distinction between hemp plant unharvested and harvested hemp plant. Is it reasonable that a citizen in the correct assumption that he IS, five cannabis plants should comply with the risk of prosecution if he exposes the hemp harvest? A question of entirely different order the desirability of an upper limit on the size and weight of hemp plants tolerated and thus also the yield of the hemp plant. Now such a limit so far lacking is the line of the Court not simply incomprehensible.
3.16. The second approach leads to an opposite result. Growing and / or possessing hemp is a violation of the Opium Act, so an offense. The instructions and guidance as to certain facts concerning an exception. It seems reasonable to those exceptions are not well explain. The instructions and guidelines can therefore be construed so that it does not require that intentionally possessing more than two kilograms of dried pieces of hemp plants, obtained by self-cultivation or cultivation of these plants, in principle, be dealt with by a police dismissal as a waiver of found the hemp is made (16).
Such reasoning is followed in a ruling by the Court in Den Bosch from July 5, 2010, LJN: BN1460 (in a different composition than here in the contested decision). (17) It is there also a case in which six plants were found and need an opinion from the Court on the implications of the numerical limit of five plants was not. Nevertheless, the Court clearly felt to need to comment on this point. I quote: "Unlike this Court in previous rulings have held (including the ruling of this court on December 17, 2008, LJN: BG7141), the court considers that, based on it must be assumed that the Note is not just a numerical limit on the amount of hemp plants in principle without the risk of prosecution produced may be, but that while factors such as size of the hemp plant and the (expected) harvest also in the recitals to be involved. The court understands the scope of The directive says that in the encountering five cannabis plants or less, no criminal response follows, but that it does not includes the situation where the yield of the plants, the small amount for personal use (well) beyond. In such case, the suspect The Directive does not derive a reasonable expectation that he will not be prosecuted for growing or possession of five or fewer hemp plants. "
For clarity, I must add that the decision which the Court takes away (LJN: BG7141) here in the cassation appeal is at issue.
The decision of July 5, 2010 has referred the situation to the border with the proceeds from the plant the small amount for personal use (well) beyond. The limit is in the light of instructions and guidelines are not very bright. Apparently refers to the amount of five grams of normal users. Suppose that a plant is not very remarkable weight of 250 grams 45 grams hemp tops are harvested. Suppose further that the dry weight of the tops 20 grams. According to the approach of the Court on July 5, 2010 exceeds that (largely) the limit of 5 grams. That means I believe that harvesting is not a big hemp plant is beyond the reach of prosecution. And while I concentrate on the dried hemp tops. After all parts of the hemp plant contain the consequences and the reasoning of the Court could therefore be that it is permitted only for five plants with a weight of one gram to possess This also seems to follow that a relationship between the five plants for which, in principle, no prosecution will be imposed and the amount of five grams of users is not very obvious.
3.17. On appeal, the contested decision, to some extent only limited review. It's about whether the opinion of the judge whose decision is contested is incorrect and / or incomprehensible. Although some of the second approach is to say, the approach of the Court in this case my view is not incorrect nor incomprehensible. In the absence of evidence to the contrary can be interpreted the Instruction regarding the yield of five plants is the same as those for growing five plants. If the cultivation of five plants at a distance is settled with dismissal, does so for the yield of the crop. Or that (criminal politically) a desirable interpretation of the Note, it must under the cassation procedure left open. Inaccurate or simply incomprehensible in any case. This view is fully consistent with the manner in which instructions and guidance furnished. The space offered, the Court is not necessarily unusual used. It is the OM course quite a path that leads to a change of instructions and guidance.
3.18. The plea fails in its entirety.
4. Ex officio, I found that no grounds for annulment of the contested case must lead.
5. This conclusion extends to dismiss the appeal.
The Attorney-General
to the Hoge Raad der Nederlanden
An Extended until December 31, 2010, see Government Gazette. 2004, 246, Government Gazette. 2008, 2730 and Government Gazette. 2009, 19486.
2 PV: Up to 16 March 2003 contained a list II b indeed, holding: "Hemp, which is understood every part of the plant of the genus Cannabis, which the resin has not been removed, except the seeds. Usual solid mixtures hemp and resin of hemp plant elements (such as hashish, esrar, and chiras djamba), which no other substances are added. " Since March 17, 2003, the division into a and b, however, fell. This is apparently not incorporated in the Instructions. Given the other contents, it is clear that still refers to hemp products.
3 Extended until December 31, 2010, see Government Gazette. 2004, 246, Government Gazette. 2008, 2730 and Government Gazette. 2009, 19486.
4 PV: I note only that the calculation of illegally obtained advantage is based on a yield of 28.2 grams per plant, including the publication cf Illegally obtained benefit from cannabis indoor growing under artificial light in April 2005 by the Office Confiscation Legislation the Public Prosecution (BOOM) (
http://www.om.nl/actueel/publicaties/bureau/ 148635/wederrechtelijk @ /) and the LOVS agreements relating to the calculation of the yield of hemp (
http://rechtspraak .bistro.ro.minjus/NR/rdonlyres/A6F3625D-DED4-44BD-8BE4-944DA5715978/0/OrientatiepuntenenafsprakenLOVS.pdf.
5 Papers II, 1974-1975, 13 407, No. 3.
6 According to the Note, these are local initiatives where, for nuisance abatement in the street, addicts opportunity to take their users amount of drugs. On-site workers are often present. The starting point is that the provision and marketing - including user quantities of drugs - is not permitted and that there action being taken.
7 Cf. the Instruction.
8 Cf. HR 28 March 1990, NJ 1991 / 118 annotation MS, HR 19 June 1990, NJ 1991 / 119 annotation MS and ThWvV, HR 29 March 1994, NJ 1994 / 577 annotation Sch.
9 See, eg also
http://www.om.nl/vast_menu_blok/contact ... ord/drugs/.
10 Cf. eg HR 24 June 2003, LJN AF8678.
11 HR 18 May 2010, LJN: BK6942, NJ 2010 / 439 annotation Schalken.
12 I can not follow those findings to the extent that the Court here 400 grams and 1780 grams refers to as hemp tops, while the Court when the total material (2180 grams), speaks of tops and debris. Now that the 1780 grams in a garbage bag with the cutting device is found and the house was 400 grams to dry, it is quite obvious to assume that the amount of 1780 grams of the remnants of the plant concerned. For two pounds tops like a 'hemp boom and need the pictures in the file do not point in that direction. For the assessment of the drug is not particularly relevant ambiguity.
13 Or where the plants are and how they are planted, as I add to it. The yield of plants outside in the garden may be different from plant indoors in a small flowerpot on the windowsill.
14 In note 12 I have already put it out as far as I understand was tops at 400 grams. Depending on the humidity, the weight of the dried tops (much) less.
15 The presence of less than thirty grams of hemp is in accordance with art. 11, second paragraph, Opium Act in connection with the sixth and first paragraph of that article and Art. 13, first paragraph, of the Opium Act, an offense punishable with imprisonment not exceeding one month or fine of the second category.
16 Cf. the conclusion of my former colleague Mr. Root for HR 20 May 2003, ref. 02216/02 (unpublished), HR: 81 RO. In this case, the old investigation and prosecution policy guidelines offenses Opium (Government Gazette 1996, 187) apply. Directive which is different to the material items not on the Note and the Directive.
And in 1917 already had the example sentence of a court in Maastricht, 4 July 2006, LJN: AY0310. The issue in that case to possessing 416 grams of hemp. That hemp came from five plants in the garden of the defendant. The public prosecutor shall be judged. The argument is roughly five plants that may have, but how much loose hemp harvested per plant, one may thus have not answered.
that pisses all over my personal best of 8 oz on 1 plant wiv x2 400w son t agros 