In short: drug offences in the Netherlands are prosecuted under the Opium Act (Opiumwet), which divides substances into List I (hard drugs) and List II (soft drugs). Using a drug is not an offence in itself, but possessing, producing, dealing, transporting, importing and exporting it are. The tolerance policy (gedoogbeleid) is a prosecution policy, not a legal right. After an arrest the police may hold you for up to nine hours, followed by up to twice three days in police custody before a judge reviews the case.
If you are suspected of a drug offence in the Netherlands, the charge depends on the substance, the quantity and your role. The tolerance policy for small amounts of soft drugs does not change that: it binds only the Public Prosecution Service (Openbaar Ministerie, OM) and can be set aside.
Two sets of rules apply at once. The Opium Act says what is forbidden and how heavily it is punished. The Code of Criminal Procedure (Wetboek van Strafvordering, Sv) governs the arrest, the custody deadlines and the trial.
Table of contents
What does the Opium Act prohibit?
The Opium Act prohibits almost every act involving a listed drug except use itself. The key offence in practice is having the substance present (aanwezig hebben), which does not require ownership.
List I contains substances with an unacceptable health risk, such as cocaine, heroin, MDMA, amphetamine and LSD. List II contains cannabis products and certain sedatives. Article 2 of the Act sets out the prohibited acts for List I and Article 3 does the same for List II: preparing, processing, selling, delivering, supplying, transporting, manufacturing, importing, exporting and having the substance present. For cannabis, growing is also prohibited.
Why is use not an offence?
Dutch policy treats drug use primarily as a public health issue, so the Act deliberately leaves use itself out. A user almost always has the substance on them, however, and having it is the offence.
The tolerance policy narrows that gap for small quantities of soft drugs. It is laid down in the prosecution guideline on the Opium Act (Aanwijzing Opiumwet), not in the Act itself, and it is applied more strictly in some regions than in others.
Our guide to Dutch drug legislation sets out the lists and the policy in full. The article on drug possession and the reality behind the tolerance policy explains where the line between tolerated and prosecuted really runs, and cannabis cultivation and criminal law deals with growing.
What penalties does the Opium Act set?
Hard drug offences carry maximum sentences of up to twelve years; soft drug offences up to six years. These are ceilings, not tariffs.
For List I substances, intentionally having the drug present carries a maximum of six years’ imprisonment. Intentionally selling, delivering, supplying, transporting or manufacturing it carries a maximum of eight years, and importing or exporting a maximum of twelve years (Article 10 Opium Act). If the quantity is small and evidently intended for personal use, the maximum drops to one year.
For List II substances the ordinary intentional offence carries up to two years, import or export up to four years. Where cultivation or dealing is carried out professionally or commercially, or concerns a large quantity, the maximum is six years (Article 11 Opium Act).
Can you be prosecuted when no drugs were found?
Yes. Article 10a of the Opium Act punishes acts that prepare the heavier List I offences, with a maximum of six years.
Examples are buying equipment or chemicals for a laboratory, renting premises for production, or holding money intended for a drugs transaction. The prosecution must show that the acts were intended to prepare or facilitate a serious List I offence.
How does a court decide the actual sentence?
The court looks at the sentencing guidelines used by the judiciary and at your personal circumstances. Most Opium Act offences can also be punished with a fine of the fifth category under Article 23 of the Dutch Criminal Code (Wetboek van Strafrecht, Sr), an amount that is indexed periodically.
How courts arrive at a sentence is explained in our article on how Dutch sentencing works.
How long can you be held after an arrest?
The police may hold you for questioning for up to nine hours, after which police custody of up to twice three days can follow. You must be brought before the investigating judge within three days and eighteen hours of the arrest.
The hours between midnight and nine in the morning do not count towards the nine-hour period. If more time is needed, an assistant public prosecutor can order police custody (inverzekeringstelling) for three days, which the public prosecutor may extend once by three days. The investigating judge (rechter-commissaris) then tests whether the arrest and the custody were lawful and can order your immediate release.
What happens if pre-trial detention continues?
The investigating judge can order remand in custody (bewaring) for fourteen days. After that, the court can order continued detention (gevangenhouding) for up to ninety days.
Pre-trial detention is only possible for offences with a statutory maximum of four years or more, or for specifically listed offences (Article 67 Sv). It also requires a legal ground, such as a risk of flight, a risk of reoffending or the interests of the investigation (Article 67a Sv). You can contest both the ground and the necessity at every hearing.
What are your rights during the police interview?
You have the right to remain silent and the right to consult a lawyer before and during the first police interview. The officer must caution you before questioning starts (Article 29 Sv).
The right to a lawyer during the interview has been in the Code of Criminal Procedure since 1 March 2017. If you are placed in police custody, a duty lawyer is assigned automatically, and you may replace that lawyer with one of your own choice. If you do not speak Dutch well enough, an interpreter must be provided at no cost.
These rights matter a great deal in drug cases. Once the substance has been analysed, it is rarely in dispute. Many files turn instead on what the suspect said in the first hours about a package, a car, a storage unit or a set of keys. An explanation given without advice, before you have seen the file, is hard to correct later.
There is no general obligation to give the police the access code to your phone. Our articles on when you are formally a suspect and on when you need a criminal defence lawyer explain this in more detail.
How can the case end?
The public prosecutor can drop the case, impose a penalty order or summon you to court. Which route is chosen depends on the evidence, the seriousness of the offence and your record.
Dismissal
The prosecutor can dismiss the case because the evidence is insufficient (a technical dismissal) or on policy grounds under Article 167 Sv. A policy dismissal sometimes comes with conditions.
Penalty order
For offences with a statutory maximum of up to six years, the prosecutor can issue a penalty order (strafbeschikking) without a judge. It can impose a fine, community service or a driving disqualification.
A penalty order counts as a finding of guilt and is recorded in the judicial documentation system, so accepting one for convenience is often a mistake. You have fourteen days to lodge an objection (verzet) under Article 257e Sv, after which the case goes to court.
Summons
If you are summoned, lighter cases go to a single judge (politierechter), who can impose at most one year’s imprisonment. Heavier cases go to a panel of three judges.
You can appeal against a judgment within fourteen days. An appeal in cassation to the Supreme Court (Hoge Raad) must also be lodged within fourteen days of the appeal judgment.
Where does a defence in a drug case start?
A defence starts with the file, not with the substance. Three questions come up again and again: was the search lawful, is the substance what the charge says, and did you know about it and have control over it?
Was the search lawful?
Article 9 of the Opium Act gives designated officers their own powers to enter premises and search vehicles and luggage. A key question is whether there was a reasonable suspicion at the moment of the stop or search, which the court reviews on the basis of the official reports.
Is the substance what the charge says it is?
Both the quantity and the composition of the substance determine which article of the Opium Act applies and which maximum the court can impose. The chain from seizure to laboratory report must be intact, and errors in weighing, sampling or registration can change the charge.
Did you know about the drugs and have control over them?
Having drugs present requires a degree of knowledge and power of disposal. This is often the core issue when something is found in a shared car, a sublet room or a parcel addressed to someone else.
A person who borrows a car without knowing that drugs are hidden in it does not have them present in the legal sense. The court looks at all circumstances, such as fingerprints, statements and messages, to decide whether knowledge can be proven.
What if the investigation contained procedural defects?
If there was a procedural defect in the investigation, the court can attach consequences to it under Article 359a Sv. These range from a reduction in sentence to exclusion of evidence and, in exceptional cases, inadmissibility of the prosecution.
The Supreme Court sets a high threshold: the defence must identify the defect, the interest that was harmed and the disadvantage suffered, and must raise this at an early stage. Evidence increasingly comes from intercepted communications and from data obtained abroad from encrypted messaging services. Its lawfulness and reliability can be challenged, but only on the basis of the concrete file.
What follows a conviction?
A conviction can be followed by a confiscation order for the proceeds of the offence, forfeiture of seized items and consequences for your certificate of conduct, residence permit and driving licence.
The prosecutor can bring a separate confiscation claim (ontnemingsvordering) under Article 36e Sr to recover the estimated proceeds of crime. That claim is heard in its own procedure and in practice requires you to account for your assets and cash flows. Seized items such as vehicles, phones and money can be confiscated or withdrawn from circulation.
A conviction is recorded in the judicial documentation system. This affects a certificate of conduct, as explained in our article on the VOG for internationals, and possibly your right to stay in the Netherlands, discussed in a criminal conviction and your residence permit. Where driving is involved, see drugs and driving.
Can the mayor close your home or business?
Yes. Under Article 13b of the Opium Act the mayor can close a home or business premises where drugs intended for dealing are found, or where preparatory acts take place. This does not depend on a conviction or even a prosecution.
A closure order is an administrative decision under the General Administrative Law Act (Algemene wet bestuursrecht, Awb). You challenge it by lodging an objection within six weeks, and you can ask the administrative court for a provisional measure to prevent the closure while the objection runs. Tenants also risk losing their lease, so the criminal case and the closure order must be handled together.
What should you do if you are a suspect?
Say that you want a lawyer and wait until you have spoken to one before answering questions. Then write down the times of the arrest, the search and each interview, and keep the written notice of seizure for anything taken from you.
Ask your lawyer to request the case file. Investigative requests to the investigating judge should be made in good time; requests made shortly before the hearing are more likely to be refused. If you cannot pay a lawyer privately, subsidised legal aid is available through the Legal Aid Board (Raad voor Rechtsbijstand). Our article on what a criminal lawyer costs in the Netherlands explains how that works.
The statutory text of the Opium Act is available on wetten.overheid.nl, and the OM explains its approach to drug crime on om.nl.
What can we do for you with a drug offence case?
Our criminal law team in Eindhoven and Amsterdam defends clients in Opium Act cases from the first police interview to appeal.
- We assist you before and during the police interview and advise on whether to make a statement.
- We contest police custody and pre-trial detention before the investigating judge and the court.
- We request the case file and test the search, the laboratory report and the evidence of knowledge and control.
- We lodge an objection (verzet) against a penalty order within the fourteen-day deadline.
- We handle the confiscation claim under Article 36e Sr alongside the criminal case.
- We file the objection to a closure order under Article 13b Opium Act within six weeks and request a provisional measure.
Summary
- The Opium Act prohibits possessing, producing, dealing, transporting, importing and exporting drugs; use itself is not an offence.
- Maximum sentences range up to twelve years for hard drugs and six years for soft drugs; the tolerance policy is not a legal right.
- After an arrest you can be held for nine hours plus up to six days of police custody before the investigating judge reviews your case.
- You have the right to remain silent and to consult a lawyer before and during the police interview.
- Deadlines are short: fourteen days to object to a penalty order or to appeal, six weeks to object to a closure order.
Frequently asked questions
Is cannabis legal in the Netherlands?
No. Possessing, selling and growing cannabis remain offences under the Opium Act. Under the tolerance policy, possession of up to 5 grams for personal use is generally not prosecuted, and coffeeshops may sell small quantities under strict conditions.
How much cannabis can I legally possess?
No amount is legal. Possession of up to 5 grams for personal use is generally not prosecuted under the tolerance policy, but the police will usually still seize it. The tolerance does not cover commercial growing or supply.
What are the penalties for drug trafficking in the Netherlands?
Dealing or transporting hard drugs carries a maximum of eight years in prison, and importing or exporting them twelve years (Article 10 Opium Act). For soft drugs the maximum is four years for import or export and six years for large quantities or professional dealing (Article 11 Opium Act).
Can I be prosecuted for personal drug use?
Use itself is not an offence, but having the drug on you is. Small quantities of soft drugs for personal use are generally not prosecuted. For very small quantities of hard drugs the prosecution guideline also allows a dismissal after seizure, but this depends on the circumstances.
