In many drug cases, defendants are accused of committing criminal acts of preparation or promotion. Acts of preparation or promotion are acts that are not punishable in themselves, but which facilitate the execution of certain opium offences.

Preparation and promotion acts:

In itself, making a shed, money, certain chemicals or a car available is not punishable. Nor is giving information. It does become punishable if the person providing money, goods or information knows, or has serious reason to suspect, that these resources will be used to commit a criminal offence. These acts are then deemed to have been done with the intention of facilitating, preparing or promoting a crime.

In which cases are acts of preparation and promotion punishable?

Acts of preparation or promotion are not criminalised for all offences. In the case of the Opium Act, they must be the more serious offences. These are mainly acts involving narcotics mentioned in list I of the Opium Act. List I of the Opium Act includes the hard drugs, substances that the government considers pose an unacceptable risk.

Why are preparatory acts criminalised

The law was prompted to allow the public prosecutor to intervene criminally at an earlier stage and make it easier to prosecute people operating more in the background. Before the introduction of this law, the authorities could only intervene at a relatively late stage, namely the moment when the offence was completed or when the criminal attempt (beginning of execution) was present. As a result, the organisers behind the trafficking often went unpunished as they were not involved in the final acts of execution.

In practice

The article is often charged, but in practice, criminal acts of preparation and promotion turn out to be not at all easy for the prosecution to prove. After all, someone can make a shed or a car available for all kinds of reasons, for instance. This does not necessarily have to be related to (international) opium offences. The same applies to, for instance, raw materials for substances on list 1 of the Opium Act. If it can be made plausible that e.g. the raw materials, the car or the money can also be used for other - non-criminal - purposes, an acquittal should also follow.

Preparatory act or criminal attempt

There can also be a debate as to whether there is a criminal attempt or a criminal preparatory act. An important difference between these two legal terms is that in the case of attempt, the conduct carried out by the accused must, by their outward appearance, have been carried out to a sufficiently concrete extent on completion of the crime. If the accused's conduct (by its outward appearance) is still (somewhat) too far away from the intended crime, it cannot be said to be a punishable attempt. In that case, there may still be criminal preparatory acts, but if this has not been charged, an acquittal should follow.

Supreme Court in November 2023

The section in the Opium Act is still fodder for legal debate. On 21 November last year, the Supreme Court still ruled that punishable acts of preparation/promotion could also be involved if the accused acts took place after the batch of narcotics in question had been seized. As the Court of Appeal took a different view, the case has to be (partially) reheard by the Court of Appeal.

Mr. D.M. Penn