Initiative of the Kingdom of Sweden with a view to adopting a JHA Council Decision on the transmission of samples of illegal narcotic substances

(2001/C 10/02)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Articles 30, 31 and 34(2)(c) thereof,

Having regard to the initiative of the Kingdom of Sweden(1),

Having regard to the opinion of the European Parliament(2),

Whereas:

(1) The possibility of legally transmitting samples of seized illegal narcotic substances between the authorities of the Member States for the purposes of prevention, detection, investigation and prosecution of criminal offences would increase the effectiveness of the fight against drugs.

(2) The fight against drugs is a matter of common concern for law enforcement and justice authorities in the Member States.

(3) At present no legally binding rules exist regulating the legal transmission of seized illegal narcotic substance samples between the authorities of the Member States. A system should therefore be created at European Union level to allow for the legal transmission of such samples.

(4) That system should apply to all forms of transmission of samples of seized illegal narcotic substances between Member States. Transmission should be based on agreement between the sending and the receiving Member State, together with information to other Member States whose territory is involved.

(5) Agreement between the Member States involved should be entered into by centralised contact points on the basis of a standard sample transmission form. Following due completion of this form, transport should be deemed to take place legally.

(6) Transmission should take place in a manner that is sufficiently secure and guarantees that the transported samples cannot be abused,

HAS DECIDED AS FOLLOWS:

Article 1

Establishment of a system for the transmission of samples

1. This Decision establishes a system for the legal transmission between Member States of samples of illegal narcotic substances.

2. Transmission of samples of illegal narcotic substances (hereinafter "samples") shall be considered lawful in all Member States when it is conducted in accordance with this Decision.

Article 2

Definitions

For the purposes of this Decision, "narcotic substances" means:

(a) any substance, natural or synthetic, mentioned in Schedules I or II of the United Nations Single Convention on Narcotic Drugs 1961, and that Convention as amended by the 1972 Protocol;

(b) any substance mentioned in the revised Schedules I, II, III and IV of the United Nations Convention on Psychotropic Substances 1971;

(c) any substance coming under the scope of the decisions taken or to be taken on the basis of Article 5 of Council Joint Action 97/396/JHA of 16 June 1997 concerning the information exchange, risk assessment and the control of new synthetic drugs(3).

Article 3

National contact points

1. Each Member State shall designate a national contact point for the purposes of implementing this Decision.

2. Information concerning the designated national contact points, including subsequent modifications, shall be transmitted to the General Secretariat of the Council which shall publish the information in the Official Journal.

3. The national contact points shall be the sole bodies competent for authorising the transmission of samples under this Decision.

Article 4

Agreement to transmit samples

1. The national contact point of the Member State intending to send a sample and the national contact point of the Member State intended to receive a sample shall agree on the method of transport. For this purpose they shall make use of the sample transmission form set out in the Annex.

2. Where transmission of a sample involves transportation through the territory of another Member State ("involved Member State"), the national contact point of such involved Member State shall be informed of the planned transport by the national contact point of the sending Member State. To that end, each involved Member State shall receive a copy of the duly completed sample transmission form.

Article 5

Means of transport

1. The Member States sending and receiving the sample shall decide on the means of transport. Transport of samples shall take place in a sufficiently secure way.

2. The following means of transport shall be regarded, inter alia, as sufficiently secure:

(a) transport by an official of the sending or receiving Member State;

(b) transport by courier;

(c) transport by diplomatic bag;

(d) transport by registered (express) mail.

3. The duly completed sample transmission form referred to in Article 4 shall accompany the sample during the entire transport.

4. The authorities of Member States shall not hinder or detain any transport accompanied by a duly completed sample transmission form unless they have doubts as to whether the sample transmission form has been issued lawfully. In case of doubts as to the legal status of the sample transmission form, the national contact point of the Member State detaining the transport shall, as soon as possible, contact the national contact points of the Member States responsible for the completion of the sample transmission form in order to clarify the issue.

5. If the means of transport chosen is transport by an official of the sending or receiving Member State, that official shall not be permitted to wear a uniform. Further, he or she shall not have any operational powers and shall not be permitted to carry out any other missions during the transport.

Article 6

Nature of the sample and its use

1. A sample shall not exceed the quantity necessary for the work of law enforcement or judicial authorities.

2. The use of the sample within the receiving Member State shall be agreed between the sending and receiving Member States, it being understood that samples can only be used for prevention, detection, investigation and prosecution of criminal offences.

Article 7

Evaluation

1. This Decision shall be subject to evaluation before ...(4).

2. For the purpose of the said evaluation the national contact point of each sending Member State shall hold in archive a copy of every sample transmission form issued during at least the previous five years.

Article 8

Entry into force

This Decision shall take effect on [1 September 2001].

Done at ...

For the Council

The President

(1) OJ C ...

(2) OJ C ...

(3) OJ L 167, 25.6.1997, p. 1.

(4) Five years after the date of entry into effect of this Decision.

ANNEX

SAMPLE TRANSMISSION FORM

A. National contact point responsible for sending the sample

A.1. Name: ...

A.2. Address: ...

A.3. Stamp:

A.4. Signature and date: ...

B. Sending authority, receiving authority and intended use of sample in receiving Member State

B.1. The sample originates from:

B.1.1. Name: ...

B.1.2. Address: ...

B.2. The sample is intended for:

B.2.1. Name: ...

B.2.2. Address: ...

B.3. The sample is intended to be used for:

(a) prevention of criminal offences;

(b) detection of criminal offences;

(c) investigation of criminal offences;

(d) prosecution of criminal offences;

(e) other use.

C. Nature and quantity of sample

C.1. The sample is of the following nature (indicate exact composition): ...

C.2. The sample is of the following quantity (indicate exact quantity, i.e. the grams, number of pills, etc.): ...

D. Means of transport and route to be used

D.1. The following means of transport will be used:

(a) transport by an official of the sending or receiving Member State;

(b) transport by courier;

(c) transport by diplomatic bag;

(d) transport by registered (express) mail;

(e) other means of transport (specify).

D.2. The following route will be used (indicate starting point, destination and general route to be used between those two points): ...

D.3. Where transport is to be by an official of the sending or receiving Member State, indicate the intended means of transport (train, car, etc.): ...

D.4. National contact points of Member States to be informed pursuant to Article 4(2): ...

E. National contact point receiving the sample

E.1. Name: ...

E.2. Address: ...

E.3. Stamp:

E.4. Signature and date: ...