Bruk av cannabis i Danmark och dubbel straffbarhet i Sverige - förenligt eller ej?
Using cannabis in Denmark and double criminality in Sweden - compatible or not?
Author
Summary, in English
The relationship between the requirement of double criminality and using cannabis in Denmark is complicated. The reason is that the Danish legislation of drugs doesn´t have a specific rule which prohibits the condition of using drugs. Therefore, it´s a difficult task for the Swedish judicial system to decide whether or not it´s illegal to use drugs in Denmark. As a consequence, it´s also hard to determine the fulfilment of the requirement of double criminality.
The Danish legislation of drugs contains the concept “besiddelse”. The meaning of that concept has an important role in this context when deciding if the requirement of double criminality could be fulfilled, and accordingly if the Swedish jurisdiction is applicable when, for instance, a Swedish citizen with residence in Sweden misuses cannabis in Copenhagen. Two opposite judgements from the Court of Appeal have been pronounced concerning those circumstances. The case RH 2001:16 adjudged that the concept “besiddelse” includes use of drugs and by that the requirement of double criminality was fulfilled. According to the Court, the essential was that the Danish rule in the legislation contained a range of punishment. The latest case, RH 2010:38, dismissed the prosecution. According to an obtained opinion from the Danish Justice ministry, the circumstance when using drugs isn´t independently regulated in the Danish legislation of drugs. Based on that opinion, the Court adjudged that it´s not illegal to use drugs in Denmark and therefore the requirement of double criminality wasn´t fulfilled.
As a consequence of the case RH 2010:38 and the judgement that it isn´t illegal to use drugs in Denmark, there followed a problematic burden of proof for the prosecutors. The role of the prosecutor is to prove the suspect guilty by having used cannabis in Sweden and not in Denmark, which certainly will be objected as a consequence of the latest judgement. Furthermore, the court in general probably will have a demanding task when interpreting the Danish law of drugs and the concept “besiddelse”. With reference to the two opposite judgements, it seems to be a complicated mission.
According to my opinion, the Danish concept “besiddelse” means possession of drugs. Nevertheless, with reference to the Danish legislation; “Lov om euforiserende stoffer”, the requirement of double criminality is fulfilled since it´s illegal to hold drugs with the intention to using it. Therefore, it´s vital to consider the purpose of the Danish legislation of drugs and not only the concept of “besiddelse” when determining if the requirement of double criminality is fulfilled or not. The Danish legislation obviously has another approach to deal with drugs by focusing on possession. Regarding to the aforementioned, either the prosecutor or the court should have the problematic tasks as a consequence of the latest judgement RH 2010:38, which stated that the requirement of double criminality wasn´t fulfilled since it seems to be legal to use drugs in Denmark.
If the future judgement doesn´t have the same opinion as I have, a possible solution to the problem is for the judicial judgment to focus on the possession before the use of drugs, as possession of drugs is illegal in Sweden as well. In this way it would be easier to fulfil the requirement of double criminality. Furthermore, the prosecutors’ burden of proof in court would be easier since it seems to be hard to object to the possession of the drugs before the suspect used it.
The Danish legislation of drugs contains the concept “besiddelse”. The meaning of that concept has an important role in this context when deciding if the requirement of double criminality could be fulfilled, and accordingly if the Swedish jurisdiction is applicable when, for instance, a Swedish citizen with residence in Sweden misuses cannabis in Copenhagen. Two opposite judgements from the Court of Appeal have been pronounced concerning those circumstances. The case RH 2001:16 adjudged that the concept “besiddelse” includes use of drugs and by that the requirement of double criminality was fulfilled. According to the Court, the essential was that the Danish rule in the legislation contained a range of punishment. The latest case, RH 2010:38, dismissed the prosecution. According to an obtained opinion from the Danish Justice ministry, the circumstance when using drugs isn´t independently regulated in the Danish legislation of drugs. Based on that opinion, the Court adjudged that it´s not illegal to use drugs in Denmark and therefore the requirement of double criminality wasn´t fulfilled.
As a consequence of the case RH 2010:38 and the judgement that it isn´t illegal to use drugs in Denmark, there followed a problematic burden of proof for the prosecutors. The role of the prosecutor is to prove the suspect guilty by having used cannabis in Sweden and not in Denmark, which certainly will be objected as a consequence of the latest judgement. Furthermore, the court in general probably will have a demanding task when interpreting the Danish law of drugs and the concept “besiddelse”. With reference to the two opposite judgements, it seems to be a complicated mission.
According to my opinion, the Danish concept “besiddelse” means possession of drugs. Nevertheless, with reference to the Danish legislation; “Lov om euforiserende stoffer”, the requirement of double criminality is fulfilled since it´s illegal to hold drugs with the intention to using it. Therefore, it´s vital to consider the purpose of the Danish legislation of drugs and not only the concept of “besiddelse” when determining if the requirement of double criminality is fulfilled or not. The Danish legislation obviously has another approach to deal with drugs by focusing on possession. Regarding to the aforementioned, either the prosecutor or the court should have the problematic tasks as a consequence of the latest judgement RH 2010:38, which stated that the requirement of double criminality wasn´t fulfilled since it seems to be legal to use drugs in Denmark.
If the future judgement doesn´t have the same opinion as I have, a possible solution to the problem is for the judicial judgment to focus on the possession before the use of drugs, as possession of drugs is illegal in Sweden as well. In this way it would be easier to fulfil the requirement of double criminality. Furthermore, the prosecutors’ burden of proof in court would be easier since it seems to be hard to object to the possession of the drugs before the suspect used it.
Department/s
Publishing year
2010
Language
Swedish
Full text
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Document type
Student publication for professional degree (Master's level)
Topic
- Law and Political Science
Keywords
- internationell straffrätt
- dubbel straffbarhet
Supervisor
- Per Ole Träskman