Problems of competence in international law with regard to the punishment of narcotic drug offences and the extradition of narcotics offenders

Abstract

Since the beginning of the century, the international net for catching persons who make wrongful use of narcotic drugs in any manner whatsoever has been drawn steadily tighter. This is the consequence of two developments: the acts constituting unlawful conduct have been defined in more extensive and more precise terms; secondly, steps have been taken to close as far as possible any loopholes in the punishment of offences. So far as substance is concerned, the object was to demarcate the lawful activities concerned with, or the lawful use of, narcotic drugs; so far as procedure was concerned, the object was to enact suitable measures making it possible to proceed effectively against offenders. A further object was that of prevention: by means of appropriate action it was intended, as far as possible, to prevent the occurrence of offences.

Details

Author: Dr. Wilhelm Henrichs
Pages: 1 to 7
Creation Date: 1960/01/01

Problems of competence in international law with regard to the punishment of narcotic drug offences and the extradition of narcotics offenders

Dr. Wilhelm Henrichs

Since the beginning of the century, the international net for catching persons who make wrongful use of narcotic drugs in any manner whatsoever has been drawn steadily tighter. This is the consequence of two developments: the acts constituting unlawful conduct have been defined in more extensive and more precise terms; secondly, steps have been taken to close as far as possible any loopholes in the punishment of offences. So far as substance is concerned, the object was to demarcate the lawful activities concerned with, or the lawful use of, narcotic drugs; so far as procedure was concerned, the object was to enact suitable measures making it possible to proceed effectively against offenders. A further object was that of prevention: by means of appropriate action it was intended, as far as possible, to prevent the occurrence of offences.

The international conventions concerning this subject which have been concluded to date still conform to the classic pattern of international legislation. That is, they bind the States to take certain steps specified in the conventions and to make provision for the punishment of breaches of the law. These conventions do not affect the individual directly.

More recently, the theory has been gaining support among international lawyers that even the individual may have rights and obligations under international law. [ 1] * Nevertheless, in the discussions on the proposed Single Convention on Narcotic Drugs, [ 2] which is intended to replace the numerous international agreements by one consolidating instrument, there has been no departure from the traditional position that only States are capable of contracting obligations under international law. This attitude is justified, for the object of the convention is not so much to create something new as to consolidate what is familiar. For practical reasons, too, a case can be made out for this attitude, for it is no doubt easier to persuade the largest possible number of States to participate in an instrument which does not break with tradition. The concept of state sovereignty, which in some circles of the "Old World" is regarded as obsolete and fit for the limbo of history, still exerts a powerful attraction, and especially again nowadays because it is a luminous idea - though it may well be as dangerous for mankind as the naked flame of a candle is for the moths fluttering round it. We should beware, however, of addressing a reproach on this account to the newly independent nations which have but recently entered our community of States that is still cast in the mould of western ideas.

For footnotes, see pp. 6-7.

Yet one may venture to predict that the trend of future development will be towards the recognition of direct obligations owed by the individual. Precisely in our field, this development could (as will be explained below) make for considerable progress. The account which follows shows how Germany - to take the example with which the author is most familiar - has participated and continues to participate in the international efforts to combat narcotic drug offences; [ 3] what domestic measures it has enacted to give effect to the agreements entered into; [ 4] and what action it can take, consistent with the principles of German international criminal law and with those governing extradition, to close any loopholes in the punishment of drug offences.

II

The International Opium Convention of 23 January 1912 was promulgated in Germany in conformity with article 295, paragraph II, of the Treaty of Versailles. [ 5] To implement it, the Act of 30 December 1920 [ 6] was passed, article 8 of which contained certain penal provisions. Under these provisions, any persons who, not being thereunto authorized, imported, exported, manufactured, processed, purchased, sold or otherwise dealt in the substances and preparations specified in the Act, or who manufactured, processed, stored, offered for sale or delivered the same in unauthorized places, was liable to imprisonment for a term not exceeding six months and a fine up to 10,000 Marks, or to one of these penalties. Furthermore, a person became liable to penalties if he bought or sold the substances in question without a licence, if he did not respect the quantities or other conditions specified in the licence, if he contravened the export and import regulations, or if he failed to produce satisfactory evidence of his transactions. In addition to imposing these penalties, the court was empowered to order the seizure of the substances involved in the punishable act, regardless of whether these substances were the property of the offender or of a third party.

In passing this Act, Germany went further than it was obliged to do under article 20 of the convention, for under this article, which most scrupulously respected state sovereignty, the contracting powers had merely undertaken to examine the possibility of enacting laws or regulations making it a penal offence to be in illegal possession of raw opium, prepared opium, morphine, cocaine and their respective salts. The question had been duly examined and answered positively, and as a result the statute described was enacted.

The International Opium Convention of 19 February 1925 and the Protocol thereto were ratified by the Act of 26 June 1929. [ 7] Article 28 of this convention set out - and this time in more specific terms - the obligation of the contracting parties to impose adequate penalties, including in appropriate cases the confiscation of the substances and preparations constituting the subject of the offence, for any breaches of the laws and regulations by which the provisions of the convention were enforced. Article 29 provided that the contracting parties would examine in the most favourable spirit the possibility of taking legislative measures to render punishable acts "committed within their jurisdiction for the purpose of procuring or assisting the commission in any place outside their jurisdiction of any act which constitutes an offence against the laws of that place relating to the matters dealt with in the present convention."

As a consequence, the German legislature passed the Act of 10 December 1929 concerning transactions in narcotic drugs, the so-called Opium Act, [ 8] which is still in force today. Article 10 contains penal provisions under which the offences more particularly specified are punishable by imprisonment for a term not exceeding three years and a fine, or by one of these penalties. As no maximum fine is prescribed, the limit laid down in the general section of the Penal Code [ 9] applies. The definition of the acts constituting offences is in part identical with that given in the Act of 1920, but some more offences have been added: false representations made to the opium office with a view to obtaining a licence; violation of the ban on the import, transit, export and production of certain substances and preparations more specifically referred to in article 9, and of the ban on dealings in those substances; postal dispatch in violation of the provisions of the conventions of the Universal Postal Union; and certain other offences. In most cases the attempt to commit any of these offences is likewise punishable (art. 10, para. II), as is the commission of any of the offences by negligence, though in the latter case the penalty is less severe (art. 10, para. III). The earlier provisions concerning seizure were supplemented by a clause empowering the court (by proceedings in rem, and even in the absence of criminal proceedings) to order the seizure of substances and preparations, in cases where it is not possible to prosecute or sentence a particular person, provided that in other respects the conditions laid down by the statute for the institution of proceedings are fulfilled (art. 10, para. V). This provision is relevant in all those instances in which a narcotic drug is found, but where the importer or owner cannot be apprehended or where the offender cannot be punished by reason of his personal status (e.g., because he possesses diplomatic immunity). For a better appreciation of the position, it should be pointed out that, despite its undoubted penal nature, seizure is not primarily regarded as a punishment in Germany (as it is, for instance, in article 28 of the Opium Convention of 1925), but as a security measure. An alien who is sentenced under the aforesaid provisions may be ordered to leave the territory (art. 10, para. VI). [ 10]

The examination made pursuant to article 29 of the 1925 Convention does not appear to have yielded any positive results; at any rate, the Opium Act makes no provision for the punishment of acts committed in Germany for the purpose of aiding and abetting the commission of drug offences abroad.

No additional penal provisions were necessary as a result of the Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, of 13 July 1931. [ 11] On the other hand, the Convention for the Suppression of the Illicit Traffic in Dangerous Drugs, of 26 June 1936, contains some very specific provisions concerning the duty of the States parties to provide for the punishment of narcotic drug offences and, where applicable, to extradite offenders (articles 2 et seq.). [ 12] But Germany did not become a party to this convention, having by that time ceased to be a member of the League of Nations.

Yet, during the war, by the order of the Ministerial Defence Council dated 6 May 1940 concerning the applicability of the criminal law, [ 13] the Penal Code was supplemented by an important provision in article 4 of that code (the article dealing with the application of German criminal law to aliens). A provision was inserted to the effect that in the case of illicit traffic in narcotic drugs, the German criminal law would apply to punishable acts committed abroad by an alien, regardless of the lex loci (art. 4, para. III, subsection 8 of the Penal Code). [ 14] This is regarded as an expression of the so-called "universality principle".

The German system appears to leave no loopholes, especially since under article 3 of the code German criminal law "follows" the person of a German national (the so-called "personal principle "); and yet the position is not quite so simple and clear-cut as it seems, as the following remarks will show.

It is provided in article 10, paragraph I, subsection 1, of the Opium Act that a person commits a punishable offence if he imports, exports, etc. the substances and preparations in question without being in possession "of the authorization provided for in article 3 ". It follows that this provision by its very nature can apply only to acts committed in Germany, since there is no German authority competent to grant permission for the exercise of such activities abroad. For the same reason a person cannot be punished in Germany under article 10, paragraph I, subsection 2, for an act which was committed abroad, for the licence (the lack of which constitutes the offence) is obtainable from a German authority only in respect of a transaction in Germany, and consequently the lack of a German licence for a transaction taking place abroad cannot constitute a punishable offence in Germany. Under article 10, paragraph I, subsection 3, it is a punishable offence to make false representations to the German Opium Office with a view to obtaining a licence. Clearly, this act is likewise only punishable in Germany if committed in Germany. Article 10, paragraph I, subsection 4 deals with offences against article 9 of the Act. Article 9 prohibits the import, transit, export and manufacture of prepared opium and certain other narcotic substances and preparations and transactions in these substances. Manifestly, this prohibition - and hence also its effect in criminal law - can apply only to German territory. Hence, in the nature of things, it is impossible to commit abroad an offence against article 10, paragraph I, subsection 4 read in conjunction with article 9 of the Opium Act. This list could be prolonged, and always one would arrive at the same conclusion; an exception is the case contemplated in article 10, paragraph I, subsection 7, which provides for the punishment of persons who send narcotic substances or preparations through the mail in violation of the conventions of the Universal Postal Union. In this case, reference is made to international instruments which are meant to protect not merely the German Federal Postal Service, but all postal administrations members of the Universal Postal Union, against such activities. An act violating this provision can constitute an offence against German law, whether it is committed in Germany or abroad.

Accordingly, on closer scrutiny one reaches a somewhat depressing conclusion: although for the purpose of determining whether certain acts, whether committed by German or by foreign nationals, constitute narcotics offences, German law is applicable even in cases where the acts were committed abroad and are not punishable under foreign law, there is no substantive rule of German criminal law that can be resorted to for the purpose of determining such punishable acts; in other words, it is precisely the German law which ought to be applied pursuant to article 4, paragraph III, subsection 8, of the Penal Code, that is lacking. In addition, it should be noted that German criminal law does not recognize "crimes by analogy "; [ 15] hence, it is not possible, for example, to institute a prosecution under article 10 of the Opium Act on the grounds that a transaction in narcotic drugs has taken place abroad without the official document corresponding to the German authorization or licence, or that false representations have been made to a foreign authority which corresponds to the German opium office. The only offence under international criminal law affected by the extension of the applicability of the German Penal Code is that of sending narcotic drugs through the mail in violation of the Conventions of the Universal Postal Union.

III

A German national accused of an offence by the state prosecutor is always tried by the German courts in accordance with German criminal law. According to article 3 of the Penal Code, German criminal law applies to the acts of a German national whether committed in Germany or abroad. An act committed by a German national abroad is not punishable under German criminal law if, in view of the special conditions in the place of its commission, it is not held to be a punishable wrong (art. 3, para. II, of the Penal Code). Accordingly, there is no punishment in such cases. Further-more, under article 153 ( b) of the Code of Criminal Procedure, the state prosecutor may waive prosecution in respect of any acts committed by German nationals abroad. The guiding principle in these cases is not, therefore, the principle of the unconditional application of the law (Legalitätsprinzip) - which is the principle regularly observed in other cases - but rather that of the application of the law in the light of the circumstances (Opportunitätsprinzip).

Article 16, paragraph II, of the Basic Law of the Federal Republic of Germany provides that no German national may be extradited to a foreign country.

It follows that a German national who, while in a foreign country, contravenes that country's regulations concerning the illicit traffic in narcotic drugs (other than the illicit dispatch by post), is virtually beyond the reach of the law if after the commission of the act he succeeds in returning to Germany; owing to the absence of any substantive German penal provisions defining and rendering punishable unlawful conduct abroad and because German courts cannot punish him according to foreign law, he is not punished in Germany, nor can he be extradited to a foreign country to stand his trial in a foreign court.

IV

The benefit of the ban on extradition does not extend to aliens (in so far as they are not persons prosecuted on political grounds who have been granted asylum (cf. art. 16, para. II, second sentence, of the Basic Law [ 16] ). While, therefore - despite the express terms of article 4, paragraph III, subsection 8, of the Penal Code, which extended the applicability of German criminal law - aliens cannot, owing to the lack of substantive penal provisions, be punished in Germany for narcotic drug offences committed abroad, they can in principle be extradited to foreign States for prosecution. Accordingly, it becomes necessary at this point to consider the law relating to extradition. [ 17]

In Germany, extradition is regulated either by specially concluded international agreements or by the Extradition Act of 23 December 1929. [ 18] The Act is of only subsidiary importance compared with the international agreement [ 19] Since, however, it regulates standard conditions, it will be taken as the basis for the discussion which follows.

Under article 1 of the Act, an alien who is being prosecuted or has been convicted by the authority of a foreign State by reason of a punishable act may, upon the request of a competent authority, be extradited to the government of that State for the purpose of the prosecution or of the application of the sentence. As the use of the word "may" shows, extradition is not mandatory; the ruling on the question of extradition has to be given (according to the statute) by the Land high court (Oberlandesgericht) in whose area the person concerned is apprehended or found (art. 8, para. II, 9, of the German Extradition Act). Under article 2, extradition cannot be ordered except in the case of an act which constitutes a crime or offence (Verbrechen or Vergehen) under German law. In other words, it must be a relatively serious act. Under these provisions, narcotic drug offences would be regarded as extraditable, since they are "offences" (Vergehen) under German law. An important qualification is introduced, however, by article 4 of the Act, which provides that an extradition order must not be made if reciprocity is not assured, or if under German law the prosecution or the application of the sentence in respect of the act would be barred by the lapse of time or by a remission of penalties or for some other reason, or if it has been ruled that the act comes within the jurisdiction of the German courts, and a German (judicial) authority has either given judgement against the person concerned, or else ruled that the trial of the principal issue should not be proceeded with.

In view of article 4, paragraph III, subsection 8, of the Penal Code one might think that precisely the last-named eventuality could be of significance in the matter of extradition for narcotic drug offences. This is not, however, the case, because (as has been explained above) there is no substantive rule of German criminal law providing for the punishment of narcotics offences committed abroad.

The most formidable obstacle in extradition proceedings is the condition that reciprocity must be assured. The principle of reciprocity is very strictly interpreted by the German courts. It is not sufficient that by the de facto conduct of other States reciprocity should appear to be observed in the matter of the extradition of offenders; rather, there must be a legally unassailable guarantee of reciprocity. In addition, the weight of judicial opinion favours the view that it is an essential ingredient of reciprocity that the act by reason of which the request for extradition is made should be punishable in both the countries concerned. According to this view, the necessary reciprocity cannot be said to exist if the State to which the request is addressed could not, in the reverse case, ask for similar judicial assistance on the grounds that the particular offence which has led to the request is not punishable under the laws of the State to which the request is addressed. The intention is evidently to discourage the making of an extradition order, even though an offence has in fact been committed, in any case where the statutory definition of the offence and the conditions governing its prosecution do not correspond in every detail.

This restrictive interpretation of the law on the part of the courts is criticized by learned authors. [ 20] But quite apart from the objections of doctrine, it is not hard to see that, for purely practical reasons, requests for extradition by reason of narcotic drug offences can give rise to very great difficulties. It is the practice of the courts - using a formula similarly employed in the official argument - to examine whether the act in question would, mutatis mutandis, be punishable under German criminal law. [ 21] They regard article 4 of the Extradition Act as a rule of adjective law that supplements the substantive rule in article 2, which stipulates that the act by reason of which extradition is sought must be punishable under German law. A great expert on the subject who, however, disagrees with the courts on this particular point, has suggested that the difficulties could be overcome if the courts, in considering this question, proceeded from the fiction that the foreign State making the request came within the German jurisdiction, and that German law applied to the act prosecuted abroad. [ 22] Whether this fiction would advance the solution of the particular case under discussion it is not possible to say without closer examination. The provisions of the Opium Act, breaches of which are punishable under article 10, regulate so many points of detail that it would be a great coincidence if the regulations of a foreign State were to agree with them in every single respect. Consequently, only by means of a very liberal comparison of the definitions, and a waiver of the condition of correspondence in every detail, would it be possible to achieve a satisfactory result.

To sum up: although under the German law relating to extradition now in force the extradition of foreign narcotics offenders is not impossible in principle, yet in practice very serious difficulties may crop up in the consideration of requests for extradition, and as a consequence it is conceivable that persons who have in fact broken the law escape the penalty to which they are really liable.

V

The third draft of the proposed Single Convention on Narcotic Drugs [ 23] deals with the obligations of the States in the matter of criminal law in chapter IX, entitled "Measures against illicit traffickers ".

By article 45, paragraph I, the parties undertake, "subject to their constitutional limitations" (which appears at any rate a milder formula than that used in article 2 of the Convention of 26 June 1936), to adopt such measures as will ensure that certain acts will be treated as punishable offences, and that serious offences will be liable to severe punishment, particularly by imprisonment or other penalties of deprivation of liberty. The following acts are to be treated as punishable offences:

  1. Cultivation, production, manufacture, extraction, pre-paration, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this convention.

  2. International participation in, conspiracy to commit, and attempts to commit any of these acts; and

  3. To the extent permitted by domestic law, preparatory acts.

Under article 45, paragraph 2, the parties further undertake "within the framework of their existing legal systems and criminal jurisdiction, and subject to their constitutional limitations" (Could any formula be more cautious if one wishes to achieve anything at all? One is tempted to answer "No.") to adopt such measures as will ensure that

  1. Each of the offences enumerated in paragraph 1, if committed in different countries, shall be considered as a distinct offence;

  2. Foreign convictions for the offences shall be taken into account for the purpose of establishing recidivism;

  3. Serious offences committed abroad either by nationals or by foreigners shall be prosecuted by the State in which the offender may be found if otherwise the offender might escape prosecution.

These provisions are supplemented by article 45, paragraph 3, which deals with the law relating to extradition. The offences specified in paragraph 1 are to be deemed to be extraditable offences. It is, however, provided that extradition is to be granted in conformity with the law of the State to which application is made, and that that State has the right to refuse to effect the arrest or grant the extradition of offenders in cases where the competent authorities consider that the offence is not sufficiently serious.

5Article 45 of the draft contains two further paragraphs, which are saving clauses. These are intended to facilitate acceptance of the convention, but make it in fact more difficult to combat narcotic drug offences effectively. Paragraph 4 states that the article must not be interpreted as being prejudicial to the attitude of a party towards the general question of the limits of national criminal jurisdiction under international law. And paragraph 5 provides that nothing contained in the article affects the principle that the offences to which it refers shall in each State be defined, prosecuted and punished in conformity with its domestic law. These provisions, in other words, expressly reaffirm that no attempt is made to formulate definitions of offences under international law by international treaty, or to vest competence for the prosecution and punishment of such offences in international authorities and courts.

It is necessary, lastly, to consider article 46 of the draft, which deals with seizure and confiscation. The former is the official act of temporarily securing the substances in question, the latter the official act of vesting their ownership in the State.

According to the draft, any drugs, substances and equipment intended for the commission of any of the offences referred to in the preceding article are liable to seizure and confiscation. This is in no way an unusual provision. It should be observed, however, that under German constitutional law, the confiscation of the instrumenta sceleris cannot normally be ordered unless they are the property of the offender or a party to the offence. [ 24] In this context one would expect to find provisions concerning also the seizure and confiscation of the producta sceleris, which are usually mentioned in the same breath in Germany. The draft is silent on this question.

Article 46, paragraph 2, provides for the destruction of certain substances, for the conversion of others into substances not subject to the Convention or for their use by the Government or under governmental control. This provision does not raise any special problems.

VI

It now becomes necessary to consider whether the conclusion of a convention on the lines of the draft calls for new solutions of the international law problems of the German criminal law regarding narcotic drugs.

The purely domestic legislation concerning narcotic drugs, including the penal provisions, probably does not need amendment to any great extent. On the other hand, the provisions of the German international criminal law, with which this study is specially concerned, will have to be amended.

In the first place, it would have to be provided that if a German or a foreign national contravenes abroad a foreign law which was enacted to give effect to the convention, that person will be liable to penalties in Germany if he is found in Germany (cf. art. 45, para. 2 ( c)). Whether it is possible in practice to give the German courts competence to rule on the question whether foreign regulations have beenviolated is open to doubt. How are the courts to acquire the necessary knowledge of the relevant regulations, particularly when they are dealing not with the regulations of a neighbouring country, but with those of Asian or African States? Should they rely only on the definition of the offence as given in the foreign legislation, or should they also be guided by that legislation in the matter of the nature and extent of the punishment? The latter is clearly out of the question. A general scale of penalties applicable in Germany for the infringement of foreign regulations would therefore have to be established. How far this would be compatible with the structure of the German legal system is another weighty problem.

For example, different countries may interpret differently the obligations under article 45, paragraph 1; this difference in interpretation is a potential source of complications. Thus, under paragraph 1 ( b), conspiracy to commit a drug offence, and under paragraph 1 ( c), preparatory acts, are to be punishable, but the latter only to the extent permitted by domestic law. What is the difference between conspiracy and preparatory acts? The logical sequence is conspiracy, preparation, execution. The convention, however, appears to visualize a different order, since the penal provision relating to preparatory acts is qualified, whereas that relating to conspiracy is unqualified. Furthermore, what exactly is the significance of the proviso in paragraph 1 ( c) "to the extent permitted by domestic law "? It seems merely to repeat the proviso at the beginning of the paragraph, "subject to their constitutional limitations". Perhaps the difference between the two provisos is that paragraph 1 ( c) does not mean the words "to the extenet permitted by domestic law" to be construed in a strict sense, based on the hierarchical classification of the sources of the law, but to refer rather to the extent to which the punishment of such acts is standard practice in a particular legal system. According to this interpretation, Germany would not be entering into a commitment by accepting the terms of paragraph 1 ( c), for under German law preparatory acts are only rarely punishable. Actually, stricto sensu illicit traffic is in any case but a preparatory act for narcotic drug offences properly so called. Even on the assumption that there is no obligation to make preparatory acts punishable, there still remains the question why there should be an unqualified obligation to punish conspiracy, which, as was said above, is even further removed from the actual offence than are preparatory acts. In Germany, only conspiracy to commit a crime (Verbrechen) is punishable. [ 25] Perhaps the clause refers, however, to the " master minds" directing or organizing the illicit traffic, for it has been considered an unsatisfactory state of affairs that gang leaders or organizers who remain in the background should frequently escape punishment. [ 26]

The object in raising the above problems was to illustrate how the contracting parties might interpret their obligations differently. And the reason why this possibility is relevant to this discussion is that, owing to the many possible differences between national legislations, it becomes extremely difficult to prosecute effectively in a particular country offences which have been committed abroad.

6 BULLETIN ON NARCOTICS • JANUARY-MARCH 1960All these difficulties could be avoided if the convention itself defined the offences exhaustively, and in that way established a system of definitions that would be uniform in the territories of all the States parties. It is pertinent to refer to the case of breaches of the regulations of the conventions of the Universal Postal Union; such breaches can be prosecuted in all States, precisely and only because the regulations broken are the same everywhere. Similar instances could easily be cited from international criminal law.

Presumably, the term " abroad " in the draft convention does not mean any foreign country, but only those foreign States which are parties to the convention. Against this interpretation it might, however, be objected that the protection of the country of custody and of its population against narcotic drug offenders, which is the purpose of the prosecution, is of such importance as to justify the institution of criminal proceedings not only on behalf of other States parties, but also on behalf of any State which combats the illicit traffic in narcotic drugs by the enactment of suitable regulations, whether within the framework of the convention or not.

The idea underlying article 45, paragraph 2( b), is manifestly that the repetition of an offence of which the person concerned has been previously convicted constitutes, in general, grounds for imposing severer penalties. This is not the case in Germany, however, for in this country recidivism is only in a few quite exceptional cases the subject of special statutory provisions, and these are to the effect that the nature of the offence changes if there has been a previous ejusdem generis offence. [ 27] Moreover, even in these cases, the German courts invariably take the view that foreign convictions can never establish recidivism. [ 28] It is consequently unlikely that

Germany could enter into a commitment of the kind contemplated in this provision of the convention.

It is of course possible to interpret article 45, paragraph 2 ( b) differently. It may be intended to mean that the courts are to regard a previous conviction of the offender of a like offence as an aggravating circumstance in determining the precise sentence within the scale of penalties imposable under the law. This is, of course, also the practice of the German courts; but in such cases there is no question of the punishment of recidivism.

The proposed provisions concerning extradition do not appear to offer any great problems. They cover practically all the possible eventualities, subject to the proviso that the law of a State to which application for extradition is made is to apply.

VII

In conclusion it may be said that, while the proposed Single Convention on Narcotic Drugs certainly marks an advance, it will still not produce a completely satisfactory system of international criminal law relating to narcotic drugs. It may not even be possible to establish such a system, because, on the one hand, opinion concerning the dangers of narcotic drugs is still by no means uniform, [ 29] and, on the other, because the incidence of narcotic drug offences varies from country to country. An appeal should be addressed to the solidarity of States, and the ultimate object should be to work out a definition of the acts which constitute illicit traffic in narcotic drugs under international criminal law.

Notes

1

Cf, for instance, Georg Dahm, Problematik des Volkerstrafrechts, Gottingen, 1956, especially pp. 14 et seq.; and Arthur Wegner, "Der strafrechtiche Schutz des Volkerrechts ", in Materialien zur Strafrechtsreform, vol. 1, " Gutachten der Strafrechtslehrer ", Bonn, 1954, pp. 357 et seq.

2

Cf. United Nations Commission on Narcotic Drugs, reports on eleventh session (Geneva, 23 April to 18 May 1956, E/2891, pp. 20 et seq); twelfth session (New York, 29 April to 31 May 1957, E/3010/Rev.1, pp. 44 and 45); and thirteenth session (Geneva, 28 April to 30 May 1958, E/3133, pp. 49 et seq.). Reports on these sessions by the German observer (Ministerialrat Danner) were published in the Deutsche Apotheker-Zeitung, 1956, pp. 659 to 661; 1957, pp. 597 to 600; and 1958, pp. 723 to 727.

3

Cf. the publication Bekämpfung von Rauschgiftdelikten, Wiesbaden, 1956, published by the Federal Criminal Investigation Department, Wiesbaden.

4

A. Linz, Die deutsche Opiumgezetzgebung, Berlin-Göttingen, 1948.

5

Reichsgesetzblatt 1921, p. 6.

6

Reichsgezetzblatt 1921, p. 2.

7

Reichsgesetzblatt 1929, part II, p. 407.

8

Reichsgesetzblatt 1929, part I, p. 215.

9

Art. 27, part II, subsection 1, of the Penal Code: DM 10,000. If the offence was committed with the object of gain - as most of the offences against the narcotics regulations probably are - the fine may, under article 27 of the Penal Code, be increased to DM 100,000. If the moneys received and the gain derived from the offence by the offender are higher than this upper limit, a fine exceeding this limit may be imposed (article 27 c, para. III, of the Penal Code).

10

This provision became inoperative by virtue of article 11, subsection 4, of the Deportation Act of 23 March 1934 ( Reichsgesetzblatt, part I, p. 213).

11

Proclamation of 10 June 1933, Reichsgesetzblatt, part II, p. 319.

12

Text in: La Documentation Intenationale, Paris, 1936, pp. 90 et seq. This is preceded (pp. 89 to 90) by an informative survey of the development of international law in the matter of action to curb the abuse of narcotic drugs.

13

Reichsgesetzblatt, part I, p. 754.

14

In the draft of the general part of the Penal Code, Bonn, 1958, the corresponding provision appears in article 6, subsection 11.

15

Hans Welzel, Das deutsche Strafrecht, 6th ed., Berlin, 1958, p. 21. For a detailed discussion, see Walter Sax, Das strafrechtliche Analogieverbot, Göttingen, 1953.

16

Cf. Entscheidungen des Bundesgerichtshofs in Strafsachen, vol. 3, p. 392; and vol. 8, p. 59. For a detailed discussion, see Heinrich Grutzner, " Auslieferungsverbot und Asylrecht " in: Neumann-Nipperdey-Scheuner, Die Grundrechte, vol. II, pp. 583 to 604.

17

Cf. in this connexion Heinrich Grutzner," Staatspolitik und Kriminalpolitik im Auslieferungsrecht " in Zeitschrift für die gesamte Strafrechtswissenschaft, Berlin, 1956, pp. 501 to 518; and by the same author," Die Rechtsprechung des Bundesgerichtshofes in Auslieferungssachen " in Goltdammer, Archiv für Strafrecht 1957, pp. 373 to 382.

18

Reichsgezetzblatt 1929, part I, p. 239.

19

Grutzner, op. cit. (Goltdammer, Archiv), p. 373 under 14.

20

In addition to Grutzner (see note 17), see in particular Hans-Heinrich Jescheck, "Die internationale Rechtshilfe in Strafsachen in Europa" in Zeitschrift für die gesamte Strafrechtswissenschaft, Berlin, 1954, pp. 518 to 544, especially pp. 527 to 529.

21

Cf., for instance, Entscheidungen des Bundesgerichtshofs in Strafsachen, vol. 1, p. 222; vol. 7, p. 265.

22

Grutzner, op. cit. (Goltdammer, Archiv), p. 378.

23

E/CN.7/AC.3/9 of 11 September 1958.

24

It is agreeable that article 10, paragraph V, first sentence, of the Opium Act, in so far as it expressly allows confiscation irrespective of ownership, conflicts with article 14 of the Basic Law.

25

Article 49 a, paragraph II, of the Penal Code.

26

In this connexion, see S. Langlais, Internationale Rauschgiftschmuggler, in the publication cited in note 3, pp. 139 to 168.

27

Whereas, for example, under article 242 of the Penal Code larceny is an offence (Vergehen), under article 244 of the Penal Code a repetition of larceny constitutes a crime (Verbrechen). A parallel case is that of fraud (article 263 of the Penal Code) and repetition of fraud (article 264 of the Penal Code).

28

Entscheidungen des Bundesgerichtshofs in Strafsachen, vol. 7, p. 265.

29

In this connexion, see Erich Hesse, Die Rausch- und Genussgifte, 2nd ed., Stuttgart, 1953.