The new Eurojust report on the Current situation in judicial cooperation in new psychoactive substance and (pre)precursor cases focuses on the recent developments in Member States’ legislation, casework and operational experience with regard to the investigation and prosecution of new psychoactive substance (NPS) and (pre)precursor cases of a cross-border nature.
Following a judgement by the Court of Justice of the European Union (CJEU), substances that do not have any beneficial effect on human health are not medicinal products, and medicine laws should no longer be used as a basis for the prosecution of NPS and (pre)precursor cases. Thereupon, several Member States modified their legislation accordingly.
Due to the constant modification of the chemical structure of the substances, NPSs risk falling out of the scope of national regulations. Member States have chosen different regulatory methods to respond to this risk. Eleven States (out of a total of 24) are regulating substances based on a listing of substances (or types/groupings of substances) which is attached to a law. Other means of regulating are by describing the substance (or types/groupings of substances) in the law, using relevant administrative rules either as a sole legislative source or to cover the gaps in criminal law, by describing the effects of a specific substance or by applying international agreements as complementary to national law.
From both legislative and operational perspectives, Member States are often confronted with a variety of issues, such as the lack of a legal basis for the criminal prosecution, the absence of harmonised national legislation throughout the European Union, as well as time-consuming requests for mutual legal assistance. The most frequent challenges faced by judicial authorities in NPSs are the identification and classification of certain substances as illegal and other procedural and evidentiary difficulties, for example establishing the correct form of intent of a perpetrator.
Eurojust can assist Member States in overcoming those obstacles by coordinating their efforts through the use of its judicial cooperation tools, namely coordination meetings, coordination centres and joint investigation teams. Eurojust’s early involvement will facilitate the exchange of case-related information and evidence, accelerate mutual legal assistance processes, and lead to tailor-made cross-border solutions. Eurojust distributed a questionnaire to substantiate the new report with real data and practical examples by gathering direct input from Member States’ legislation, case law and operational experience. Altogether, 24 States, 22 Members States, plus Norway and Switzerland, replied to the questionnaire sent by Eurojust.
Ms Piia Vottonen, Project Executive and National Member for Finland at Eurojust, said: The purpose of this report is to follow up on the 2015 Eurojust report, Judicial cooperation in cases involving (pre)precursors and new psychoactive substances (NPS) and the 2016 joint Eurojust and European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) report, New psychoactive substances in Europe; Legislation and prosecution — current challenges and solutions, and update all interested stakeholders on the current NPS and (pre)precursor situation from a judicial perspective. The new report offers a comprehensive overview of the legislative solutions implemented by Member States to criminalise NPSs and (pre)precursors after the CJEU judgement.