Reflections on some international and Swedish legal rules relating to drug offences

Sections

I. Introduction
II. Punishable offences
III. Jurisdiction
IV. What punishments are to be imposed?
V. Seizure and confiscation
VI. Extradition
VII. Conclusion

Details

Author: Michael BOGDAN , FALK
Pages: 1 to 20
Creation Date: 1977/01/01

Reflections on some international and Swedish legal rules relating to drug offences

LL.D. Michael BOGDAN
Assistant Professor of Law, University of Lund, SwedenLL.D. FALK
Research Assistant, University of Lund, Sweden; Judge at the Appelate Court of Malmo

I. Introduction

Sweden has ratified all the important multilateral conventions in the field of drug control, with the exception of the Convention of 1936 for the Suppression of the Illicit Traffic in Dangerous Drugs (hereinafter referred to as the 1936 Convention) [ (1)] . Several of these conventions oblige Sweden to take certain penal measures against persons who have committed offences connected with narcotic drugs and psychotropic substances.

The penal provisions of the conventions are not intended to be directly applicable by national courts. The conventions stress that the offences should be defined, prosecuted and punished in conformity with the domestic law of the state involved [ (2)] . The penal provisions in the conventions are, consequently, not "self-executing", i.e. they only oblige the contracting States to adapt their domestic penal law so that it is in conformity with the conventions [ (3)] . The purpose of this paper is to analyse the penal provisions in the international conventions and also to examine whether Sweden's penal law fulfils the requirements imposed by the conventions. The focus of the paper is on the question of jurisdiction, which we find to be of particular interest in this connexion.

Because of practical reasons, the terms "narcotics" and "drugs" will, unless otherwise indicated, be used to denote both narcotic drugs and psychotropic substances.

The oldest convention in this field, the 1912 Convention, does not contain any specific penal rules. Article 20 of the Convention states only that the contracting countries shall examine the possibility of making illegal possession of opium, morphine, cocaine and their salts a punishable offence. Such obligation to examine possibilities does not, of course, imply any duty to take penal measures.

The 1925 Convention contains, in article 28, a rule according to which breaches of a State's laws or regulations by which the provisions of the Convention are enforced shall be punishable in that State by adequate penalties, including in appropriate cases the confiscation of the substances concerned. This provision obliges the contracting States to take measures to punish violations of laws relating to drugs covered by the Convention. Less important is article 29, according to which the contracting parties will examine in the most favourable spirit the possibility of taking legislative measures to render punishable acts committed within their jurisdiction for the purpose of 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 Convention. Article 29 is no more than a recommendation.

The 1931 Convention obliges, in article 15, the contracting States to adopt all necessary legislative or other measures in order to give effect within their territories to the provisions of the Convention. A similar formulation is found also in article 14 of the 1953 Protocol. Among the legislative and other measures that may be necessary to give full effect to the various restrictions and controls imposed by the Conventions, penal legislation is unavoidable. Nevertheless, these Conventions do not specify in detail the obligations of the contracting States in criminal matters.

Sweden, together will all the other Scandinavian countries, has ratified the 1961 Convention. It is the purpose of the 1961 Convention to replace, as between parties to it, previous conventions concerning narcotics, with the exception of the 1936 Convention [ (4)] . Since the Scandinavian States are not parties to the 1936 Convention and since the 1961 Convention has won almost universal acceptance, the international agreements concluded prior to 1961 are, as far as Sweden is concerned, of rather limited practical importance. We shall therefore focus our attention on the three international agreements that are of relevance today: the 1961 Convention, the 1971 Convention and the 1972 Protocol.

Already at this stage it must be pointed out that the treaties establish only a minimum degree of criminal prosecution of offences related to drugs. States are thus free to apply more severe measures than those required by the conventions [ (5)] . Excessively harsh steps could, however, conceivably violate other rules of international law, for example the rules protecting human rights (prohibition of collective punishment or torture, etc.). But that is another story.

Turning to the situation in Sweden, we feel that the following statistical figures, indicating the number of convictions for drug offences in the years 1954-1975, may be useful to illustrate the seriousness of the drug problem in Sweden [ (6)] :

1955 3 1966 279
1956 2 1967 540
1957 2 1968 1 431
1958 18 1969 3 151
1959 48 1970 2 279
1960 102 1971 2 167
1961 125 1972 2 470
1962 82 1973 2 358
1963 84 1974 2 523
1964 236 1975 2 586

Let us now present the principal sources of Swedish law in the field under scrutiny here [ (7)] . The main sources are the Narcotics Penal Act ( narkotikastrafflagen, 1968:64) and the Narcotics Regulation ( narkotikaforordningen, 1962:704). It is the Narcotics Regulation that covers the non-penal aspects of narcotics control, inter alia the right to produce, import, export, sell, buy and possess narcotics; it also defines, in sec. 1, what is meant by the term "narcotics" (8), Another statute of relevance in this connexion is the Smuggling Penal Act ( lag om straff for varusmuggling, 1960:418), which contains special penal rules relating to smuggling of drugs. Several provisions of the Swedish Penal Code ( brottsbalken, 1962:700) are also of relevance in cases involving drug offences [ (9)] .

Questions of criminal procedure will not be discussed in this paper. It should, however, be mentioned that a special statute of 1969 (1969:36) opens the way for the courts to allow telephone tapping if necessary for investigation of grave offences related to drugs. This statute was enacted only for a limited period of time, but its applicability has been repeatedly extended. There are proposals to make its provisions permanent by introducing them--after some modifications strengthening the protection of the individual--into the Code of Procedure (1942: 740) [ (10)] . It may also be of interest to mention that every judgement concerning drug offences must be reported to the Central Social Board ( Socialstyrelsen) in accordance with another special statute (1968:72).

II. Punishable offences

According to article 36 [ (1)] of the 1961 Convention, each contracting State "shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this Convention (...) shall be punishable offences" [ (11)] . What is more, any other action which in the opinion of the contracting State "may be contrary" to the Convention shall also be punishable. In any case, the Convention obliges the States to treat an action as a punishable offence only if it has been committed intentionally and if its treatment as a punishable offence is not contrary to the Constitution of the State involved.

The Convention does not specify what is meant by "intentionally". Nevertheless, there seems to be no reason to assume that the term should be interpreted in a manner different from that used in most domestic legal systems. Consequently, the term comprises dolus directus as well as dolus indirectus and dolus eventualis. Actions committed by negligence ( culpa) are not covered by the Convention. States are, of course, free to punish them anyway according to their domestic legislation.

The construction used in article 22(1)( a) of the 1971 Convention, is somewhat different. Even this provision speaks only of actions committed intentionally and obliges the contracting States to treat them as punishable subject only to the constitutional limitations of each particular State. On the other hand, the actions to be made punishable are not enumerated. Instead, the 1971 Convention speaks of "any action" contrary to a law or regulation adopted in pursuance of the State's obligations under the Convention (12). For example, article 7( a) of the 1971 Convention obliges States to prohibit all use of LSD except for scientific and very limited medical purposes. An action violating a domestic regulation issued in pursuance of article 7( a) must consequently be treated as a punishable offence. It is submitted that the formulation "a law or regulation adopted in pursuance of its obligations under this Convention" should not be interpreted literally. Swedish laws restricting the traffic and use of psychotropic substances are much older than the 1971 Convention and can thus hardly be said to have been adopted "in pursuance" of Sweden's obligations under the Convention. It would, however, be illogical and inconsistent with the aims of the Convention to apply article 22 [ (1)] ( a) only in relation to domestic laws enacted by the contracting States in order to comply with the requirements of the Convention. It is suggested that article 22 [ (1)] ( a) should be interpreted to refer to violations of such existing legal rules which the States are obliged to have, regardless of the time and circumstances of their enactment.

The fact that certain intentional actions must be "punishable" does not necessarily mean that any such action must always be punished. There is no doubt that the Conventions do not oppose the application of general rules of domestic penal law limiting criminal liability, for instance the rules about minimum age limits [ (13)] . On the other hand, a contracting State can hardly be said to fulfil its obligations under the Conventions if it formally declares certain actions to be punishable but does not prosecute them in practice. From a strictly legal point of view, the lack of means or power does not release a State from its obligations under international law [ (14)] . This principle does not, however, change the fact that a number of countries are today unable to enforce efficiently their laws in the whole of their territories.

Article 36 [ (2)] of the 1961 Convention and article 22 [ (2) ] of the 1971 Convention impose on contracting States certain obligations to be fulfilled "subject to the constitutional limitations of a Party, its legal system and domestic law". This means that the States are obliged to fulfil these obligations only to the extent permitted by the existing laws of each particular State. In other words the States need not change their domestic law in order to comply with these provisions (15). Some of the provisions will be discussed later on; here it must be mentioned that article 36(2)( a)(ii) of the 1961 Convention and article 22(2)( a)(ii) of the 1971 Convention require - subject to the domestic law of each State--that intentional participation in, conspiracy to commit, attempts to commit as well as preparatory acts and financial operations in connexion with drug offences should also be punishable. The definitions of participation, conspiracy, attempt, preparation, etc. in domestic penal legislations are usually very precise. No such definitions can 'be found in the Conventions. It is therefore submitted that each State is free to interpret these terms according to its own penal law 06).

How does Swedish law fulfil the requirements imposed by the Conventions? According to section 1 of the Narcotics Penal Act, production, offering for sale, transfer and possession of narcotics by persons who are not entitled to engage in these types of activities are punishable offences. Illegal smuggling of narcotics to and from Sweden is made punishable by sections 1 and 3 of the Smuggling Penal Act. Section 4 of the Narcotics Penal Act stipulates that attempt, preparation and conspiracy relating to drug offences other than mere possession are also punishable, provided that the offence is not petty. Complicity (participation) in a drug offence other than possession is also prosecuted under section 5 of the Narcotics Penal Act. Section 8 of the Smuggling Penal Act stipulates that attempt, preparation, conspiracy and complicity related to smuggling of narcotics are punishable; this applies to complicity, preparation and conspiracy only if the smuggling is not petty. As to determination of what actions are to be punishable, it is possible to say that Swedish law in general fulfils the requirements imposed by international conventions.

An important question which deserves special attention is whether the possession of drugs for personal use is to be considered a punishable offence. There is authority for the view that the international conventions do not require prosecution of such possession for personal consumption (17). Such limitation cannot, however, be found in the texts of the Conventions. To the contrary, article 36(1) of the 1961 Convention explicitly requires that "possession" contrary to the provisions of the Convention should be punishable, without mentioning any distinction between possession for personal use and possession for other purposes. The 1971 Convention requires that all unauthorized possession of substances in Schedule I should be prohibited (article 7), whereas it only recommends such prohibition in relation to substances in Schedules II, III and IV (article 5(3)). This means that possession without authority of substances in Schedule I must, in accordance with article 22(1), be treated as a punishable offence. The Convention does not distinguish possession for personal use from other types of possession. Neither is there any support for such distinction in the preparatory works of the conventions [ (18)] . During the preparation of the Swedish Narcotics Penal Act, the responsible Minister pointed out that Sweden was obliged under the 1961 Convention to treat all unauthorized possession as a criminal offence. He gave, in addition, other reasons why illegal possession for personal use should be punishable. The possibility to intervene against illegal possession was, in his view, necessary in order to enable the police to stop illegal transfers of drugs. The Minister admitted, however, that punishing addicts for illegal possession could have some negative consequences in relation to treatment of addicts and he pointed out that Swedish penal law contains rules allowing the public prosecutor to abstain, in certain cases, from prosecuting criminal offences ( [ 19] ). About one year after the entry into force of the Narcotics Penal Act, the Prosecutor General stated that possession for personal use of 2-3 grams of cannabis or up to 100 tablets or a corresponding amount of phenmetrazine, amphetamine or methylphenidate should be spared from prosecution, unless special circumstances in the particular case speak against it ( [ 20] ). In 1972, the Prosecutor General extended this policy to possession of even somewhat larger quantities of drugs ( [ 21] ). Possession of LSD, opium, morphine and heroin is, however, normally prosecuted ( [ 22] ). In general, it can be said that a large number of less serious offences are not prosecuted.

III. Jurisdiction

The treatment of certain actions as punishable offences must be seen in connexion with the domestic rules concerning jurisdiction. Even if murder is a punishable offence in probably all countries of the world, this does not mean that the national courts of a particular country are ready to punish 'any murder, regardless of where, by and against whom it has been committed. Normally, a certain connexion between the crime and the forum country is required.

Article 36 [ (3)] of the 1961 Convention and article 22( [ 4] ) of the 1971 Convention provide that each country is to apply its own rules on questions of jurisdiction. At the same time, the Conventions contain certain rules on jurisdiction to be followed "subject to the constitutional limitations of a Party, its legal system and domestic law". According to article 36 [ (2)] ( a)(iv) of the 1961 Convention and article 22 [ (2)] ( a)(iv) of the 1971 Convention, serious offences should - regardless of the nationality of the offender--be prosecuted by the State in whose territory the offence was committed. The offender should be prosecuted in the country where he is found only if this country is not willing to extradite him. Articles 36(2)( a)(i) of the 1961 Convention and 22 [ (2)] ( a)(i) of the 1971 Convention stipulate that each of a series of actions constituting a drug offence, i.e. production, sale, possession, etc. should, if committed in different countries, be considered as distinct offences. This last rule is intended to make the actions fall within the jurisdiction of as many countries as possible in order to make it more difficult for the offenders to find a country of refuge [ (23)] . But since all these rules are to be applied subject to the domestic law of each State, the States have great freedom in determining the jurisdiction of their courts in relation to drug offences. It is, of course, desirable that the national rules on jurisdiction - together with rules on extradition (see infra) - are such as to guarantee that no offender escapes justice.

Let us now consider the position of Swedish law.

Since Swedish courts always apply Swedish penal law, the question of jurisdiction is normally identical with the question of Swedish penal law's territorial applicability.

The fundamental principle as regards jurisdiction of Swedish courts in criminal matters is the principle of territoriality. This is expressed in Chapter 2, section 1 of the Penal Code:

"A crime committed within this Realm shall be judged according to Swedish law and by a Swedish court. The same applies when it is uncertain where the crime was committed but grounds exist for assuming that it was committed within this Realm" (24).

Swedish courts are considered to have jurisdiction even if an offence is committed partially in Sweden and partially abroad, which leads to a substantial extension of the principle of territoriality. But Swedish jurisdiction is conceivable even if the offence has been wholly committed abroad, provided that certain conditions are fulfilled.

We shall now, first of all, discuss the problem of localization of offences, i.e. the question of which offences can be considered to have been committed in Sweden. Afterwards, we shall examine Swedish jurisdiction in relation to offences wholly committed abroad.

Chapter 2, section 4 of the Penal Code localizes offences in the following way:

"A crime is deemed to have been committed where the criminal act occurred and also where the crime was completed or, in the case of attempts, where the intended crime would have been completed" [ (25)] .

This provision makes it possible in certain cases to deem an offence or an attempt [ (26)] to have been committed both in Sweden and abroad. On the other hand, preparation and conspiracy are considered to have been committed where the person acted, nowhere else [ (27)] . Let us illustrate how these rules function in cases involving drug offences. As we have already said, section 1 of the Narcotics Penal Act imposes punishment on unauthorized production, offering for sale, transfer and possession of drugs. A person abroad who offers to sell - from abroad - drugs to unspecified buyers in Sweden is guilty of offering for sale in Sweden. A person abroad who keeps the key to a deposit box in Sweden containing drugs is guilty of possession in Sweden. Let us imagine that A mails from abroad a parcel containing drugs to B in Sweden. If the parcel reaches B, A is guilty of smuggling (according to the Smuggling Penal Act) and of transfer of drugs in Sweden. If the parcel is stopped by the Swedish customs, A is guilty of attempt of smuggling. But even if the parcel is stopped already by foreign customs so that it never reaches Sweden, A is guilty of attempt of smuggling since the offence would have been completed in Sweden. A recent case involving attempt deserves to be mentioned [ (28)] . A Turkish national residing in Sweden travels by car from Sweden to Turkey, where he purchases a large amount of cannabis which he conceals in the car in order to smuggle it into Sweden. His return journey to Sweden ends, however, in Bulgaria where he is caught by the police. Later on, he is prosecuted in Sweden for an offence against the Smuggling Penal Act. The District Court in Stockholm found him guilty of preparation of smuggling. The Svea Court of Appeal changed the classification into attempt of smuggling. The Court of Appeal was of the view that there was an attempt already when the return journey to Sweden began. This classification of the acts of the accused as an attempt to commit an offence in Sweden localized even the attempt itself to Sweden in accordance with Chapter 2, section 4 of the Penal Code (see supra). The special problems that arise when the courts are to judge an offence wholly committed abroad could thus be avoided.

The provision on localization of offences is of importance even in cases involving complicity (instigation or accessoriness) [ (29)] . When the completed offence or attempt is localized in Sweden according to Chapter 2, section 4 of the Penal Code, all the accomplices are deemed to have committed an offence in Sweden, regardless of where they have acted. This has far-reaching consequences in cases involving drugs. Let us assume that C meets D in Germany and persuades him there to smuggle drugs to Sweden and sell them here. By carrying out the plan, D commits in Sweden offences against the Smuggling Penal Act and the Narcotics Penal Act. But even C's instigation of D's offences is considered to have been committed in Sweden. Or assume that E in Germany constructs, upon D's request, a suitcase specially adapted for the smuggling of drugs. If E knew that the suitcase would be used for smuggling to Sweden, he is guilty of being an accessory to the offence in Sweden.

In a recent case before the District Court of Helsingborg, the accused was convicted of being an accessory to a serious smuggling and a serious drug offence in Sweden [ (30)] . This case is of particular interest, since the court relied on a construction based on hypothetical dolus eventualis [ (31)] . Two foreign nationals, F and G, purchased narcotics abroad. In a Swedish-registered car provided by F, G transported the drugs to Sweden. At the trial, F asserted that his intention had been to sell the drugs in Holland, not in Sweden. Nevertheless, the court held that F was an accessory to the offence in Sweden, since F had been aware of the possibility that the drugs would be sold in Sweden and he would not have abstained from his acts even if he had been sure that the drugs would be sold here. There was, therefore, Swedish jurisdiction in accordance with the territoriality principle and F was sentenced to 18 months' imprisonment.

It is difficult to say how far Swedish courts are willing to go when using dolus eventualis constructions and thus creating Swedish jurisdiction in drug cases. The crucial question seems to be what requirements should be imposed on the perpetrator's awareness of the:possibility that the drugs would be smuggled into and sold in Sweden. A peasant in the Middle or Far East who illegally cultivates opium and sells it to middlemen there is probably aware that the drugs can ultimately be sold to abusers anywhere in the world, thus even in Sweden. But can he be said to be intentionally an accessory to an offence in Sweden, even if he does not even know that a country of that name exists? The second requirement imposed by the court - that the perpetrator would not have abstained from his actions even if he had been sure that the drugs would enter Sweden - is practically always fulfilled.

Much public attention has been paid to the trial of the West German national P who was sentenced to eight years' imprisonment in 1973 for repeated serious smuggling and serious drug offences 02). It is of interest to mention that P was considered by both the court of first instance and the appeals court to be the principal perpetrator and not only an instigator, although the offences had been committed in Sweden and P had been abroad all the time. The criminal actions in Sweden had been done by other persons who acted as P's instrumentalities.

Let us now examine the jurisdiction of Swedish courts as to drug offences wholly committed abroad. In spite of the liberal localization of offences in Sweden by Swedish courts (see supra), this problem is of great practical importance. Is it, for instance, possible to punish in Sweden, and according to Swedish law, smuggling of drugs from Mexico to the United States or cultivation in the United States of drugs intended for the American market?

Two separate questions arise in this connexion. Firstly, can the particular Swedish penal rule be applied at all to human behaviour that cannot be localized in Sweden, i.e. was the rule intended to have extraterritorial applicability? Secondly, provided that the answer to the first question is in the affirmative, what conditions as to the connexion of the offence to Sweden (e.g. nationality or residence of the offender) and as to punishability of the act under foreign law must be fulfilled?

The question of extraterritorial applicability of Swedish penal law has not been solved in a general manner by the legislator. The answer must be found by interpretation of each particular penal rule [ (33)] . As to the Narcotics Penal Act, it must be pointed out that it is - although formally an independent statute - in fact in many respects dependent on the Narcotics Regulation to which it repeatedly refers, for example as regards definition of "narcotics". The very definition of offences in section 1 of the Narcotics Penal Act presupposes that the actions to be punished have been taken in violation of the Narcotics Regulation. The Regulation itself is undoubtedly of no extraterritorial applicability. Its administrative provisions on who is entitled to import, export, produce, prescribe, etc. narcotics, on the licences to be granted by the Swedish Central Social Board, on the duty to keep records, etc., are obviously not intended to be applied in relation to foreign territories. Because of this, it might also seem that the Narcotics Penal Act is territorially limited. The Government Bill introducing the Act indicates, however, that such limited applicability was not intended [ (34)] . The following example shows the undesirable consequences that could result from considering the Narcotics Penal Act to be territorially limited. Let us assume that the Swedish citizen is involved in large-scale illegal drug trafficking in the United States. Running away from the American police, he returns to Sweden. Since he is a Swedish citizen, he can never be extradited to a non-Scandinavian country like the United States. If the Swedish Narcotics Penal Act is deemed to be territorially limited, then it cannot be applied in this case, since the offence in casu cannot be localized in Sweden. It is very doubtful whether other Swedish penal rules, for instance those on causing bodily injury, illness or death, could be applied in this situation. The offender would thus escape prosecution, which is hardly a satisfactory result. It is, therefore, submitted that the Narcotics Penal Act is extraterritorially applicable. This is confirmed by existing case law. In a recent decision, two foreign nationals were sentenced for selling drugs in Sweden. At the same time, one of them was also punished for selling drugs in Switzerland, although this offence had nothing to do with Sweden [ (35)] .

The Smuggling Penal Act applies only to smuggling to and from Sweden, not to smuggling between two foreign countries. This follows directly from the wording of the statute. In a recent precedent, the Swedish Supreme Court held that a person smuggling liquor hidden in a ship from Germany to Finland could not be punished in accordance with the Swedish Smuggling Penal Act after the spirits had been discovered by Swedish customs during the ship's stopover in a Swedish harbour [ (36)] . There are no reasons to believe that the applicability of the Smuggling Penal Act would be interpreted differently in a case involving smuggling of drugs. It is, however, possible that the provisions of the Narcotics Penal Act could be applied under such circumstances, since smuggling normally presupposes at least possession. Since not only all completed smuggling but even all attempts to smuggle to or from Sweden are considered to have been committed in Sweden (see the rules on localization of offences supra), the question of the Smuggling Penal Act's extraterritorial applicability arises only in connexion with such preparation of and conspiracy to commit smuggling to or from Sweden which is not of a petty nature [ (37)] . It does not seem reasonable to limit the applicability of the Smuggling Penal Act to such preparation and conspiracy which takes place in Sweden. Extraterritorial applicability of the Smuggling Penal Act in relation to preparation and conspiracy relating to smuggling to or from Sweden is, besides, assumed in the preparatory works to the Narcotics Penal Act ( [ 38] ).

The extraterritorial applicability of Swedish penal rules relating to drug offences is, in itself, not sufficient for Swedish jurisdiction in cases concerning drug offences Wholly committed abroad. The conditions imposed by Chapter 2, section 2 or 3 of the Penal Code must also be fulfilled. Section 2 reads as follows:

"A crime committed abroad shall be judged according to Swedish law and by a Swedish court if it has been committed

"1. by a Swedish citizen or by an alien domiciled in Sweden,

"2. by an alien not domiciled in Sweden who, after having committed the crime, has become a Swedish citizen or has acquired domicile in this Realm or who is a Danish, Finnish, Icelandic or Norwegian citizen and is found here,

"3. by another alien who is found in this Realm and the crime is punishable according to Swedish law by imprisonment for more than six months.

"The first paragraph does not apply when the act is not punishable according to the law in force at the place where it has been committed or if it has been committed in a territory not belonging to any state and no harder punishment than fine can be imposed for it according to Swedish law.

"In cases considered in this section, the imposed punishment must not be more severe than the most grave punishment provided for the offence by the law in force at the place where it has been committed" [ (39)] .

Chapter 2, section 3 of the Penal Code enumerates six types of offences that carl be prosecuted in Sweden according to Swedish law even when the conditions of section 2 are not fulfilled. In this paper, only one such exception is of interest, i.e. offences committed "against Sweden" ( [ 40] ). The expression "against Sweden" comprises, inter alia, criminal acts against the internal or external security of the Swedish State or against its public authorities (e.g. abuse of power by Swedish officials), against the Swedish foreign exchange regulations and - this is of particular interest in this connexion - against the Swedish legislation on smuggling ( [ 41] ). As we have seen, completed acts of smuggling and attempts to smuggle to or from Sweden are localized in Sweden, so that the problem arises only in connexion with preparation or conspiracy. Although they are localized abroad, they can thus be punished in Sweden regardless of the law of the foreign place where they have been committed. This is important, since the law of most countries will probably not consider smuggling as such to and from Sweden to be a punishable offence. In contrast to offences against the Smuggling Penal Act, other drug offences are not deemed to have been committed "against Sweden". They can thus be punished in Sweden only if they are punishable according to the law of the foreign place where they were committed. This foreign law also determines the upper limit of the punishment.

When examining whether certain behaviour in relation to drugs is punishable according to both Swedish and foreign law, it is, in our view, necessary to compare not only the Swedish Narcotics Penal Act with its foreign counterpart, but also the Swedish Narcotics Regulation with the corresponding foreign statute. This applies primarily to the rules defining narcotics. In spite of the international Conventions, the scope of controlled substances is not the same in all national legal systems. It can thus happen that a substance which is considered to be a narcotic drug in Sweden is looked upon as a harmless pain-killer in a foreign country. The opposite situation is also possible, but very improbable. In those cases where Swedish jurisdiction presupposes that the offence is punishable according to both Swedish and foreign law (here belong most cases where the offence cannot be localized in Sweden, see supra), the offence can be punished in Sweden only if the substance in casu is subjected to penal controls in both Sweden and the foreign country in question.

When judging drug offences wholly committed abroad, the Swedish courts are in a situation similar to that concerning road traffic offences committed in a foreign country. The latter problem has, however, been regulated by special legislation (1971:965) based on a European convention of 1964. There is no such special statutory regulation as regards drug offences (42).

The result of our examination must be that the Swedish rules on jurisdiction appear to fulfil in a satisfactory way not only the need to protect Swedish interests but also the need to protect the interests of the international community. It appears that an illegal drug trafficker who because of some reason cannot be extradited can practically always be punished in Sweden in accordance with Swedish law. Sweden can, therefore, be said to fulfil the requirements of the international conventions in this field.

IV. What punishments are to be imposed?

The 1961 Convention stipulates in article 36(1) that serious offences shall be liable to adequate punishment, particularly by imprisonment or other deprivation of liberty. The same formulation is used in article 22(1)( a) of the 197I Convention. The term "particularly" (in French " notamment") can have different interpretations. It should, it is submitted, be interpreted to mean "preferably", i.e. only as a strong recommendation [ (43)] . The States are, on the other hand, obliged to impose "adequate" punishment; this obligation is subject to each country's "constitutional limitations". Adequacy means that the punishment must not be strikingly milder than punishments for other types of offences of comparable gravity, since the offences related to drugs would otherwise attract persons engaged in other types of criminal behaviour. There is evidence that the international organized crime syndicates, at present dominating the international illegal drug traffic, allocate their "resources" according to a very rational weighing of risks and advantages ( [ 44] ). This speaks in favour of an additional criterion of adequacy, requiring that the punishment should not be strikingly less severe than punishments normally inflicted for the same offence in other States. Such second criterion of adequacy has, however, no support in any of the commentaries on the conventions ( [ 45] ).

The Swedish Narcotics Penal Act distinguishes between three grades of gravity of drug offences. According to section 1, which applies to offences of "normal" gravity, illegal production, offering for sale, transfer and possession of narcotics are punishable by fines or by imprisonment for not more than two years. Section 2 deals with "petty" offences, punishable by fines only. Section 3 relates to "grave" offences, punishable by imprisonment for between one and ten years [ (46)] . When determining whether the offence is "grave", special attention is to be paid to whether it was committed professionally, on a large scale, involved large amounts of drugs or whether it was especially dangerous. But these are only examples of relevant factors, the existence of which neither necessarily means that the offence is "grave" nor is necessary for such classification. The preparatory works mention that transfer of drugs to young people can lead to the offence's classification as "grave". The dangerousness of the drug involved is also to be taken into consideration ( [ 47] ). The Prosecutor General has expressed the view that substances which threaten life or rapidly debilitate the addict should lead to the application of section 3 of the Narcotics Penal Act. Here should belong, first of all, opium derivatives like heroin; LSD should also belong to this group [ (48)] .

The judicial practice as to classification of drug offences as "normal", "petty" or "grave" varies somewhat between various Swedish courts ( [ 49] ). The 1974 practice in Stockholm - with some variations due to special circumstances in individual cases - was based on the following approximate criteria [ (50)] : Possession of 1 kg of cannabis resin or 500 capsules (150 grams) of central nervous system stimulants (the limit seems to have gone up to 200 grams in 1976) is normally considered to constitute a "grave" offence according to section 3. If there are other aggravating circumstances (for instance sale), 700 grams of cannabis or 300 capsules suffice for such classification of the offence. As regards LSD, the limit is set at 20 "single doses". The practice relating to other substances is not so clear, but 60-100 grams of opium or 20-30 grams of morphine should be sufficient for considering the offence to be "grave". No established practice exists concerning heroin. The Svea Court of Appeal sentenced a person to 9 months imprisonment for possession for personal use of 3 grams of 60 per cent heroin and another person to 18 months for selling 5-6 grams of 60 per cent heroin, in both cases according to section 1 of the Narcotics Penal Act (51). Production, offering for sale, transfer and possession for the purpose of transfer of drugs are hardly over considered to be "petty" offences. Possession for personal use of no more than 15 grams (the limit went up to 25 grams in 1976) of cannabis or 10-12 capsules (about 3 grams) of central nervous system stimulants is normally considered to be a "petty" offence, as is possession of very small amounts of opium (2-3 doses). On the other hand, possession of LSD or of heroin is not deemed to be a "petty" offence.

The figures that follow show the total number of convictions in Sweden under the Narcotics Penal Act in the years 1970-1975 (52):

1970 485 1 178 332
1971 422 1 205 335
1972 538 1 501 287
1973 552 1 272 306
1974 600 1 259 333
1975 626 1 224
240

Generally, the offences that are not "petty" normally lead to imprisonment (53). This is important as a general deterrent, but it may come into conflict with the need of treatment if the offender is himself a drug addict. The prison sentence is in such cases often made somewhat shorter, having in mind the offender's dependence on drugs. Punishments comparable to those under the Narcotics Penal Act are imposed also according to the Smuggling Penal Act. It is possible that Swedish judicial practice is in some respects milder than in many other countries. But the really grave offences are punished by imprisonment for several years; the maximum limit of 10 years is the same as that used for second degree murder. Sweden can thus be said to comply with the requirements of the Conventions.

The 1961 Convention in article 36( [ 2] )( a)(iii) and the 1971 Convention in article 22(2)( a)(iii) require that, "subject to the constitutional limitations of a Party, its legal system and domestic law", foreign convictions for drug offences should be taken into account for the purpose of establishing recidivism. It is submitted that "foreign" here refers not only to contracting States but to any foreign country ( [ 54] ). Although there is at present no rule in Swedish law explicitly ordering the courts to impose more severe punishments on persons previously punished for similar offences, there is no doubt that Swedish courts take into consideration the background of the offender. In this way, even foreign convictions may be attributed importance.

The 1971 Convention contains an additional provision which was not to be found in the original text of the 1961 Convention. Article 22(1)( b) provides that when the offences have been committed by a drug abuser, he may, either as an alternative to conviction or punishment or in addition to punishment, be compelled to undergo measures of treatment, education, after-care, rehabilitation and social reintegration. This is an expression of the modern attitude to see in the abuser a sick person who is more in need of treatment than of punishment ( [ 55] ). It is dubious whether the original version of the 1961 Convention permits the replacement of punishment for serious drug offences by treatment (see supra), even if it does permit to add treatment to punishment. Since the 1971 Convention and the 1961 Convention apply to different drugs, they can never come into conflict. Problems may, however, arise in connexion with the 1972 Protocol, since that Protocol introduced - upon Swedish initiative ( [ 56] ) into the 1961 Convention a provision similar to that in the 1971 Convention. This amendment is, of course, applicable only between countries which have acceded to the 1972 Protocol. This means that Sweden is, in relation to countries which have ratified the 1961 Convention but not the 1972 Protocol, obliged to punish offenders ( [ 57] ). From a strictly juristic point of view, Sweden must not replace punishment by treatment as long as there is one single country which has ratified the 1961 Convention but not the Protocol amending it. This would, however, hardly be reasonable. The 1961 Convention could become a serious obstacle in the development of new methods of handling the problem of drug abusers. In any case, the borderline between punishment and treatment is more a matter of terminology than of real difference. According to the Swedish point of view, even a jail sentence is supposed to treat, educate, rehabilitate and socially reintegrate the offender.

According to Chapter 31 of the Swedish Penal Code, the courts may, under certain conditions, order the surrender of the offender to special care in accordance with the Child Welfare Act, the Temperance Act, the Act on Closed Psychiatric Care, the Act on Treatment of Certain Mentally Disturbed Individuals or order the offender to submit to psychiatric care in an open institution. The courts may use these possibilities even in cases concerning drug offences, normally as an alternative to punishment. Thus, the Swedish Supreme Court found in a recent case that the drug offence had been committed under mental abnormity which was so serious that the offender was, instead of punishment, submitted to psychiatric care in a closed institution ( [ 58] ).

It can also be mentioned that foreign nationals can in addition to punishment be expelled from Sweden in accordance with the legislation on aliens ( [ 59] ).

V. Seizure and confiscation

According to article 37 of the 1961 Convention and article 22( [ 3)] of the 1971 Convention, any drugs, substances and equipment used in or intended for the commission of any of the offences covered in the Conventions shall be liable to seizure and confiscation. Whereas the 1971 Convention handles this question in the article containing penal provisions, the 1961 Convention includes this rule under a separate title. Indeed, the seizure and confiscation need not always be directed against the offender himself. They may be considered to be security measures more than punishments ( [ 60] ).

It must be observed that the provisions 'mentioned do not oblige States to seize or confiscate drugs, substances and equipment used for criminal purposes. The States have only to adopt laws rendering such objects "liable to seizure and confiscation" (in French " pourront etre saisis et coniques"), i.e. the legislation of each contracting State must provide for the possibility to seize and confiscate them. The commentaries on the Conventions, however, interpret, these provisions to mean that the contracting States are under obligation to seize and confiscate (61). Although there are strong reasons in favour of such interpretation, it goes against the wording of the Conventions, especially in their French and Spanish versions.

In Swedish law, the possibility to seize and confiscate drugs, substances and equipment used for criminal purposes is granted by articles 6 and 7 of the Narcotics Penal Act and by articles 9-12 and 15-17 of the Smuggling Penal Act. A special statute of 1968 (1968:70) imposes severe restrictions on importation of and trade with injection syringes and cannulae; in addition to punishment for violations of the statute, such objects can be seized and confiscated. According to all these provisions, seizure and confiscation shall always take place, unless they would be obviously unjust. The Swedish law stands thus in conformity with the international Conventions.

VI. Extradition

The 1961 Convention contains in its original version no more than recommendations in the matter of extradition. Article 36(2)( b) says that it is desirable that the offences covered by the Convention should be recognized as extradition crimes in any extradition treaty and that they should be recognized as extradition crimes by States which do not make extradition conditional on the existence of a treaty or on reciprocity. An identical provision is included also in the 1971 Convention in article 22( [ 2] )( b).

A substantially stronger wording is used in the 1972 Protocol. Article 36(2)( b), as amended by the Protocol, stipulates the following:

  1. Each offence covered by the Convention shall be deemed to be included as an extraditable offence in any extradition treaty existing between contracting States. Contracting States undertake also to include such offences in every extradition treaty to be concluded between them in the future. As to the already existing extradition treaties, the provision should be interpreted to mean that offences involving drugs should automatically, without any formal changes being necessary, fall under such older agreements ( [ 62] ).

  2. If a contracting State which makes extradition conditional on the existence of a treaty receives a request for extradition from another such State with which it has no extradition treaty, it may at its option consider the Convention as the legal basis for extradition. This provision does not oblige States in any way; it only draws their attention to the possibility of using the Convention as a basis for extradition.

  3. Contracting States which do not make extradition conditional on the existence of a treaty shall recognize offences covered by the Convention as extraditable offences between themselves, subject to the conditions provided by the law of the requested State.

The amendments introduced by the 1972 Protocol may seem to impose some real obligations to extradite upon the contracting States. The practical importance of the amendments is, however, substantially reduced by the fact that even they apply only subject to the constitutional limitations, legal system and domestic law of each State. According to the amended article 36( [ 2] )( b)(iv) of the 1961 Convention, the contracting States always have the right to refuse extradition if they feel that the offence is not sufficiently serious. According to the same provision, extradition is to be granted in conformity with the law of the State to which application is made. This refers both to the matters of procedure and to substantive conditions, for instance the principle that refugees are not extradited to a country where they risk political persecution.

In Swedish law, matters of extradition are dealt with in the 1957 Extradition Act (1957:668). There are, in addition, special rules relating to extradition of offenders to some States, for example to the other Scandinavian countries. These special rules are usually based on international treaties and they will not be considered in this paper.

The main principle of the 1957 Extradition Act is that a specific extradition treaty with the particular foreign country in question is not a condition for extradition. Offenders can thus be extradited also to countries which have not entered into any extradition treaty with Sweden. Neither is there any requirement of actual reciprocity. On the other hand, the Act never makes it obligatory to grant a request for extradition ( [ 63] ). The procedure in extradition cases is rather complicated, involving review by the Swedish Prosecutor General, by the Supreme Court and by the Swedish Government. The final decision is made by the Government. The hands of the Government are, however, not quite free, since the Act imposes several conditions that must be fulfilled before a foreign request for extradition can be granted.

Section 2 of the Extradition Act stipulates that Swedish nationals cannot be extradited ( [ 64] ). Section 7 says the same about persons threatened by political persecution in the requesting country.

The most important condition for extraditing is imposed by section 4 of the Act. It states that extradition must not take place for an offence if the corresponding offence in Swedish penal law cannot be punished by imprisonment of more than one year. It must be pointed out that the Act speaks of corresponding, not of identical, offences ( [ 65] ). This makes it possible to extradite even for offences which stricto sensu are not punishable under Swedish law. It seems, therefore, that a drug offence committed abroad can lead to extradition even if it relates to a substance not covered by international conventions and not considered to be a narcotic in Sweden. The requirement of maximum punishment of more than one year under Swedish law is fulfilled by both "normal" and "grave" drug offences (see supra). "Petty" drug offences alone, however, can hardly lead to extradition, since in Sweden they are punishable only by fines. This is in conformity with article 36(2)( b)(iv) of the 1961 Convention, as amended (see supra). It means, however, that aliens who are neither domiciled in Sweden nor nationals of a Scandinavian country may escape punishment for "petty" drug offences wholly committed abroad, since such offences alone cannot lead to extradition and Swedish courts have no jurisdiction to punish them in Sweden (Chapter 2, section 2, paragraphs 1 to 3 of the penal Code, quoted supra).

VII. Conclusion

The penal provisions of the Conventions in the field of international drug control appear, on the surface, to impose far-reaching obligations on the contracting States. A closer examination reveals, however, that the Convention rules are often of limited legal weight because of the various escape clauses in the text, for instance clauses providing that the obligations are subject to "constitutional limitations'' or to "the constitutional limitations, legal system and domestic law" of each State. It is necessary to agree with Henrichs who pointed out that no formula can be more cautious than that if one wishes to achieve anything at all ( [ 66] ). Naturally, even such provisions can influence national legislation thanks to their persuasive authority.

The general conclusion of our examination is that Swedish penal rules fulfil the requirements imposed by international Conventions on drugs - which was also the aim of the Swedish Legislator when enacting these rules - and that Swedish law in some respects goes even further than required by the Conventions. In spite of this, some improvements would, in our view, be desirable. For example, the complicated questions concerning jurisdiction deserve clarification and regulation in the Narcotics Penal Act.

References

001

The following Conventions have been ratified by Sweden:

  1. (a) International Opium Convention, signed at the Hague on 23 January 1912 (hereinafter referred to as the 1912 Convention), 8 League of Nations Treaty Series 187;

  2. International Opium Convention, signed at Geneva on 19 February 1925 (hereinafter referred to as the 1925 Convention), 81 League of Nations Treaty Series 317;

  3. Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, signed at Geneva on 13 July 1931 (hereinafter referred to as the 1931 Convention), 139 League of Nations Treaty Series 301;

  4. Protocol amending the Agreements, Conventions and Protocols on Narcotic Drugs, concluded at The Hague on 23 January 1912, at Geneva on 11 February 1925, 19 February 1925 and 13 July 1931, at Bangkok on 27 November 1931 and at Geneva on 26 June 1936, signed at Lake Success, New York, on 11 December 1946, 12 United Nations Treaty Series 179;

  5. Protocol Bringing under International Control Drugs Outside the Scope of the Convention of 13 July 1931 for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, as amended by the Protocol signed at Lake Success, New York, on 11 December 1946, signed at Paris on 19 November 1948, 44 United Nations Treaty Series 277;

  6. Protocol for Limiting and Regulating the Cultivation of the Poppy Plant, the Production of, International and Wholesale Trade in, and Use of Opium, signed at New York on 23 June 1953 (hereinafter referred to as the 1953 Protocol), 456 United Nations Treaty Series 3;

  7. Single Convention on Narcotic Drugs, 1961, signed at New York on 30 March 1961 (hereinafter referred to as the 1961 Convention), 520 United Nations Treaty Series 151;

  8. Convention on Psychotropic Substances, signed at Vienna on 21 February 1971 (hereinafter referred to as the 1971 Convention), text in E/CONF.58/6;

  9. Protocol amending the Single Convention on Narcotic Drugs, 1961, signed at Geneva on 25 March 1972 (hereinafter referred to as the 1972 Protocol), text in E/CONF.63/9.

002

Cf. the 1961 Convention, article 36.4 and the 1971 Convention, article 22.5.

003

Henrichs, Problems of competence in international law with regard to the punishment of narcotic drug offences and the extradition of narcotics offenders: Bulletin on Narcotics, XII:1, 1-7, at 1, 1960.

004

Article 44 of the 1961 Convention.

005

Article 39 of the 1961 Convention; article 23 of the 1971 Convention.

006

Figures for 1954 - 1969 are taken from a report by Ingemar Rexed and Nils Wickberg submitted in 1972 to the Prosecutor General (p. 4). Figures for 1970 - 1975 are taken from the publication "Fakta om narkotika och narkotikamissbruk", published in 1977 by the Central Social Board (Socialstyrelsen) in Stockholm (p. 32).

007

The official collection of Swedish statutes is called " Svensk författningssamling ", SFS. The numbers within brackets, referred to in connexion with the various statutes, denote the year and number of the statute in the SFS. An index to the SFS, covering all statutes in force on 1 January 1976, as well as all their amendments, is available (see Register över gällande SFS-Författningar 1 januari 1976 ). In practice, Swedish lawyers prefer to use the private yearly publication Sveriges rikes lag, normally called Lagboken, which contains the more important statutes including amendments. Since Lagboken is published yearly, Swedish lawyers need not search for the present wording of amended statutes in the SFS. Because of this reason, and since the original texts of the statutes discussed in this paper are today of only historical interest, we do not refer to and discuss their successive amendments. Thus, we discuss the statutes in their present wording.

There is almost no Swedish legal literature concerning drug offences. Guidance for interpretation of the statutes is found in their preparatory works, especially in the Government Bills 1968:7, 1969:13 and 1972:67. A special state committee ( narkomanverdskommitten) has presented four official investigations of the whole drug problem. These investigations have been published in the series Sveriges offentliga utredningar ("SOU"), as SOU 1967:25, SOU 1967:41, SOU 1969:52 and SOU 1969:53. SOU 1967:41 is of special interest since the Narcotics Penal Act was elaborated on the basis of it. The Prosecutor General deals with drug issues in his circular letters to public prosecutors; see circular letters C 43, C 45, C 48 Drug offences are discussed by Machanow, Specialstraffrätt (Stockholm, 1976) 56-64 and by Milsson in Wickström ed., Narkotika, Handbok för polisman (ed.4, published by the Central Police Board in 1976) 19-24

008

According to the Narcotics Regulation, the term "narkotika" covers the substances that are subject to international control under any convention ratified by Sweden and the substances that have been declared to be narcotics by competent Swedish authorities. The term covers both narcotic drugs and psychotropic substances. This way of defining means that a drug newly introduced into the lists of international conventions becomes automatically covered by the provisions of Swedish law relating to narcotics. The definition makes it possible also to subject to the same régime even substances which are at present not dealt with by any international convention.

009

Especially chapters 2 ("Applicability of Swedish Law"), 23 ("Attempt, Preparation, Conspiracy and Complicity") and 25-35 ("Fines, Imprisonment, etc."). The Penal Code has been translated into English ( The American Series of Foreign Penal Codes, No. 17, New York 1972), into French ( Les Codes Pénaux Européens IV, Paris 1971, 1831 et seq. ) and into German ( Sammlung ausserdeutscher Strafgesetzbächer in deutscher Uebersetzung, Band 96, Das schwedische Kriminalgesetzbuch, Berlin 1976).

010

See SOU 1975:95; Government Bill 1975/76:202. Telephone tapping was used in 28 cases in 1969, 39 cases in 1970, 44 cases in 1971, 34 cases in 1972, 46 cases in 1973 and 44 cases in 1974 (SOU 1975:95 p. 74). The tapping period varied from one week to 10 months. It seems that this possibility is of great help against large-scale drug offenders. In the vast majority of cases, the tapping turned out to be justified and led to conviction.

011

In connexion with punishment, article 36(1) distinguishes between "serious" and other offences. This distinction will be discussed under IV inra.

012

See Commentary on the Convention on Psychotropic Substances (United Nations, New York 1976) 348.

013

See article 36(4) of the 1961 Convention and article 22(5) of the 1971 Convention.

014

Reuter, "The obligations of States under the Single Convention on Narcotic Drugs, 1961": Bulletin on Narcotics, XX:4, 3-7, at 6, 1968.

015

Mr. Lande, the author of the commentaries on the Conventions, is of a different view, asserting that it can obviously not have been the intention of the authors of the Conventions to require the States to implement only those provisions which are already provided for in their respective domestic laws. See Commentary on the Single Convention on Narcotic Drugs, 1961 (United Nations, New York 1973) 430-431; Commentary on the Convention on Psychotropic Substances 355-356. There is, however, nothing in the preparatory works that indicates that the States intended to assume obligations for which there is no basis in the wording of the Conventions. It must be regretted that the Conventions contain formulations that are so "soft" that one can ask whether they achieve anything at all, see Henrichs, op. cit., 4. But such formulations were obviously necessary in order to make the Conventions acceptable for the majority of States.

016

See Commentary on the Single Convention 432-434; Commentary on the Convention on Psychotropic Substances 358-359.

017

See Commentary on the Single Convention 402-403, 428; Commentary on the Convention on Psychotropic Substances 349.

018

For the discussions on penal provisions at the United Nations Conference for the adoption of a Single Convention on Narcotic Drugs, New York, 24 January - 25 March 1961, see Official Records of the Conference, vol. 1, 122-129, 145-148 (Plenary Meetings) and vol. 2, 233-248, 277-278 (Committees). For corresponding discussions at the United Nations Conference for the adoption of a Protocol on Psychotropic Substances, Vienna, 11 January - 19 February 1971, see Official Records of the Conference, vol. 1, 97-99 and vol. 2, 28-35, 43-45.

019

Government Bill 1968:7 p. 111 et seq. The Minister repeatedly stressed that penal prosecution must not hamper treatment of addicts, Government Bill 1968:7 pp. 81, 93, 107. The main purpose of the penal rules is to permit actions against professional drug traffickers. The public prosecutor's decision to abstain from prosecuting can be based on chapter 20 section 7 of the Code of Procedure (1942-740) or on a special statute (1964-167) concerning young offenders.

020

Circular letter C 56 of the Prosecutor General.

021

Circular letter C 74 of the Prosecutor General.

022

Nilsson, op. cit., 22.

023

See Commentary on the Single Convention 431-432 ; Commentary on the Convention on Psychotropic Substances 357. Cf. Starke, "The Convention of 1936 for the Suppression of the Illicit Traffic in Dangerous Drugs": 31 American Journal of International Law 31-43 (1937), at 40.

024

Translation by the authors.

025

Translation from The American Series of Foreign Penal Codes, No. 17, p. 15. See also Beckman et al., Brottsbalken jamte förklaringar (vol. I, ed. 4, Stockholm 1974) 97-100. This is a detailed commentary on the Penal Code.

026

Concerning attempts, see chapter 23, section 1 of the Penal Code which reads as follows (translation from The American Series of Foreign Penal Codes, No. 17, p. 74):

000

"If someone has begun to commit a given crime without its arriving at completion, he shall, in cases where specific provisions have been made governing this, be sentenced for attempt to commit the crime, if there had been a danger that the act would lead to the completion of the crime or such danger had been precluded only because of accidental circumstances.

027

Chapter 23, section 2 of the Penal Code (translation from The American Series of Foreign Penal Codes, No. 17, pp. 74-75) states the following: Punishement provided in this Code for an act shall be inflicted not only on the one who committed the act but also on anyone who furthered it by advice or deed. A person who is not regarded as the actor shall, if he induced another to commit the act, be punished for instigation of the crime or else for being an accessory to the crime. See Beckman et. al., op. cit. (vol II) 582-599.

028a

Helsingborg District Court on 13 April 1977, case No. DB 532.

028

Svea Court of Appeal (4th department) on 9 September 1970, case No. DB 105.

029

Chapter 23, section 4 of the Penal Code (translation from The American Series of Foreign Penal Codes , No. 17, p. 75) stipulates as follows:

"Punishment provided in this Code for an act shall be inflicted not only on the one who committed the act but also on anyone who furthered it by advice or deed.

A person who is not regarded as the actor shall, if he induced another to commit the act, be punished for instigation of the crime or else for being an accessory to the crime". See Bekcmann et al. op. cit (vol II) 582-599.

030

Helsingborg District Court on 13 April 1977, case No. DB 532.

031

The Penal Code does not define the term "intention". See Beckman et al ., op. cit. (vol. I) 25-31.

032

Svea Court of Appeal (7th department) on 30 August 1973, case No. DB 113.

033

See Falk, Straffrätt och territorium (Stockholm 1976) 183-277, especially the summary in German on p. 298-306.

034

Government Bill 1968:7 p. 110. It may be added that preparatory works are attributed great importance in Sweden as guidance for interpretation of the statutes.

035

Göteborg District Court (9th department) on 16 March 1973, case No. DB 206.

036

Nytt Juridiskt Arkiv (Collection of decisions of the Supreme Court) 1974, 735.

037

Section 8 of the Smuggling Penal Code stipulates that attempt of smuggling shall be punishable. Also preparation of and conspiracy to commit smuggling of drugs shall be punished, provided that the smuggling is not petty.

038

Government Bill 1968:7 p. 109-110.

039

Translation by the authors. The general requirement in paragraph 2 that the act must be punishable also under the law of the foreign place where the offence has been committed was introduced into the Penal Code in 1972. See Government Bill 1972:98. See also Beckman et al ., op. cit. (vol. I) 72-91 and Falk, op. cit., 43-68, summary in German 285-288.

040

We abstain from discussing some special cases, e.g. offences committed on Swedish ships or airplanes.

041

See Beckman et al ., op. cit. (vol. I) 93-94; Falk, op. cit., 225-237.

042

See Government Bill 1971:114.

043

See, however, the Commentary on the Single Convention 429; Commentary on the Convention on Psychotropic Substances 352.

044

Esbjörnson, Internationell brottslighet i Sverige: Svensk Juristtidning 1972, 81-95, at 82-83.

045

Commentary on the Single Convention 429; Commentary on the Convention on Psychotropic Substances 352.

046

Prior to the enactment of the Narcotics Penal Act, the maximum penalty for a grave drug offence was 1 year's imprisonment. The Act changed the maximum limit to four years. It was changed again in 1969 to six years (both in the Narcotics Penal Act and in the Smuggling Penal Act). The aim was to permit notable penalties for profiteers taking advantage of the inexperience, curiosity or drug dependence of others, see Government Bill 1969:13 p. 9. In 1972, maximum punishment was changed to 10 years in order to achieve parity with Finnish, Norwegian and West German law. This increase was intended to affect only the most dangerous criminals, Government Bill 1972:67. pp. 27-28. On punishments for attempt, preparation and conspiracy, see foot-notes 26 and 27 supra.

047

Government Bill 1968:7 p. 119.

048

Circular letter C 74 of the Prosecutor General.

049

Ibid.

050

This information is taken from Nilsson, op. cit., 21 et seq . and from the publication Fakta om ... (see foot-note 6 supra) 33 et seq .

051

Svea Court of Appeal (6th department) on 11 July, 1974, case No. DB 146.

052

The figures are taken from the publication Fakta om ... (see foot-note 6 supra) 33. Interviews of statisticians with good knowledge of statistics on narcotics have left the impression that the 1975 figure for "grave" offences is by far too low.

053

Nilsson, op. cit., 21.

054

See, however, Henrichs, op. cit., 6.

055

The problem has been discussed at the XI International Congress on Penal Law at Budapest in September 1974. Cf., Noll, "Drug abuse and its prevention as seen by the international legal profession": Bulletin on Narcotics 1975, No. 1, 37-47, at 42-43. This article has been reprinted in Contemporary Drug Problems, Spring 1976, 71-90.

056

See Bulletin on Narcotics 1972, No. 1, 28.

057

See Commentary on the Protocol Amending the Single Convention on Narcotic Drugs, 1961 (United Nations, New York 1976) 78; Commentary on the Convention on Psychotropic Substances 346-347.

058

Nytt Juridiskt Arkiv 1974, 108.

059

E.g. the Supreme Court judgment in Nytt Juridiskt Arkiv 1969, 113.

060

Cf., Henrichs, op. cit., 2.

061

Commentary on the Single Convention on Narcotic Drugs 442-443; Commentary on the Convention on Psychotropic Substances 366-367.

062

Commentary on the Protocol Amending the Single Convention 79.

063

Such obligation to extradite follows from some of the special rules valid vis-a-vis certain countries. As has already been pointed out, these special rules are not discussed in this paper.

064

Swedish nationals can, under certain circumstances, be extradited to another Scandinavian country.

065

See Falk, op. cit., 69-98, summary in German 288-292.

066

Henrichs, op. cit., 4. Cf., Starke, op. cit., 31.