The Netherlands is often perceived as a liberal country for the policy it has adopted towards marijuana since 1976. Go to Amsterdam and drop by The Bulldog, as recommended by TripAdvisor, or stop by Mississippi when visiting Maastricht. Would it surprise you if we told you that selling weed in the Netherlands is illegal? What if we told you that by growing more than 5 plants at your place you run the risk of the police entering your home under suspicion you might be cultivating weed for another purpose than recreational smoking? The Netherlands suddenly appears less chill than it is perceived by the rest of the world. As a matter of fact, the Netherlands is very contradictory in its policies with regards to weed, but that might be about to change. Why? Let us walk you through the history of this seemingly lenient policy, and the changes that may soon be happening.
In 1976, the Dutch legislators decided to differentiate soft and hard drugs and thereby adopt different measures and sentences depending on whether the offence at stake concerned weed or heroin for example. To do so, it created two different lists. List I encompasses inter alia heroin, cocaine and LSD and List II encompasses weed, hash and some psychedelic mushrooms among other drugs. The government back then mandated a scientific committee (the Baan-Committee) to assess the danger each drug posed based on different criteria such as dependence and the consequences it has on the body and society. From this investigation, it was concluded that list I drugs pose an unacceptable risk on society and the body of the user, as well as a considerable risk of dependence. Weed, categorised under list II, proved to pose an acceptable risk to both society and the user.
By means of article 3 of the Opium Act, the Dutch Parliament has made it illegal to bring marijuana inside or outside, to cultivate, to prepare, process, sell, deliver, supply, transport, to have in your possession or to manufacture weed. So… ipso facto, weed is not legal in the Netherland. Why is it that you can buy it in coffeeshops without the police waiting outside to arrest you then? As a matter of fact, it has to do with the fact that the Netherlands adheres to the so-called opportunity principle of prosecution. This principle entails that the public prosecutor can decide whether they want to prosecute a certain crime that has been committed. Yes, you heard us right: in theory, in the Netherlands if you act in a way that is contrary to the criminal code, you will not per se be prosecuted by the state. This means that only when the public interest is served by doing so, prosecuting is the appropriate approach. The public prosecution service can decide that this year, since there has been a rise in MDMA use, this should be a priority in prosecution. Conversely, the public prosecution service can equally decide to tolerate the selling of a substance, accepting that it does not serve public interest to pursue people who smoke weed for example.
The State very simply publishes on its website the tolerance policy it adopts, explaining that buying weed and selling it is illegal but that they won’t prosecute you for having less more than 5 grams of weed or hash in your possession, or cultivating 5 hemp plants. If you scroll a bit more down those policies, you will see the famous AHOJ-G criteria that the public prosecution service implemented in 1991. The “A” stands for no commercial, “H” for no hard drugs, the “O” for no nuisance, the “J” for no younger than 18 years old kids in the coffeeshop. The last “G” is a controversial criterion, meaning that a coffeeshop cannot have a big quantity of hash/weed in stock (no more than 500 grams). In 2007, the public prosecution service added the new condition that a coffeeshop cannot sell alcohol. The municipalities themselves can even decide to forbid the existence of coffeshops. Currently, 69,7% of the municipalities in the Netherlands have decided to ban coffeeshops from operating.
But wait a minute, doesn’t it look weird to you that selling weed is tolerated but that cultivating it on a commercial scale isn’t? Because yes, big consequences arise from cultivating more than 5 plants, sometimes with up to 6 years of jail! The Supreme Court of the country has even found acceptable some very intrusive measures adopted by the police to detect and trace weed plantations. An example is a case that set a precedent allowing the police to enter your house on the ground of “reasonable suspicion of having a weed plantation” based on the simple fact that, wait for it, the police had a thermal camera flying above some houses and detected that the rooftop of a house was “abnormally warm” and thereby adapted for weed plantation.
But hang in there, because not only is the bringing inside or outside, cultivating, preparing, processing, selling, delivering, supplying and transporting illegal, but the facilitating of those actions, when there is reasonable suspicion to believe that you knew that your actions were facilitating these illegal actions, is also considered illegal based on article 11a of the Opium Act. The police are enforcing this very thoroughly, and since the very beginning of this rule. The first test for the implementation of this law happened in Maastricht. The municipality suspected a former growshop to not have adapted strictly enough to the law and sent the police the very next day after the implementation of article 11a to inspect whether the shop was still facilitating weed plantations. Because the shop was selling all types of instruments mainly used for the cultivation of weed and because the display of the instruments together implied that they were aimed at that specific use, the shop was condemned under article 11a.
All those contradictory policies have been heavily criticised, so much so that it has been announced by the Ministry of Justice that a marijuana experiment will be run around 10 municipalities consisting in ‘Legal plantations’. This experiment will start running Breda and Tillburg among other cities. There, for the years 2021-2025 only ‘legally harvested weed’ will be sold in the coffeshops. Surprisingly, the coffeeshops have not been too hyped about this. They fear the legally available weed might not be as financially advantageous as the one they illegally buy from abroad. Also, the variety they will have at their disposal will not be as attractive as the ones they find in their unknown markets. No more Royal Cheese for these cities for a while anymore, only puur nederlandse geteelt wiet*.
*pure Dutch grown weed
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