56.
E/CN.7/1988/2 (Part II) Page 11
Following further discussion and informal consultations between interested experts, the Group adopted as a compromise a restructured paragraph 1 with its substantive provisions subdivided into subparagraphs (a) and (b). The provisions of subparagraph (a), because of their significance as the centre piece of the convention, would not be subject to any limitation clause, whereas those of subparagraph (b) would be subject to the constitutional limitations, legal system and domestic law of the Parties.
57. The Group agreed to delete the word "serious" in the introductory sentence of paragraph 1 as the serious nature of the offences was inherent in the wording which made it mandatory for each Party to establish as offences listed under its criminal law the acts listed in subparagraphs (a) and (b). The Group also agreed to insert the word "intentionally" at the end of the sentence so as to stress that in order for the activities listed in paragraph 1 to be considered as criminal, they had to be undertaken with the knowledge of their illicit objective.
58.
The Croup agreed to the proposal of one representative to dissociate the concepts of "manufacture and distribution" of materials or equipment from that of their "possession" so that the provision regarding "possession" would be subject to the limitation clause under subparagraph (b).
59.
Concerning paragraph 2 of the reformulated draft, divergent opinions were expressed as to whether the sanctions enumerated therein were cumulative or alternative means of punishment for the offences set forth in paragraph 1. Several representatives were of the view that the sanctions mentioned in the paragraph should not be construed as being either exhaustive or cumulative, but rather indicative of the types of sanctions which Parties may adopt. Some representatives indicated that in their countries a combination of sanctions which included imprisonment and forfeiture, were often applied as an effective deterrent against illicit drug trafficking.
60. The propriety of including forfeiture among the possible sanctions was extensively discussed. Several representatives argued that irrespective of the fact that in some legal systems forfeiture was considered a pecuniary sanction (whereas in others it constituted a penal sanction), the concept was now sufficiently established and widely used and should accordingly find its place in the convention. Furthermore, it was considered that the forfeiture of assets acquired through illicit trafficking had proven to be an effective means of depriving traffickers of the gains of, as well as of the means of undertaking anew, their criminal activities. The Group endorsed its previous tentative decision to insert both the concepts of "pecuniary sanctions" and "forfeiture" in the new paragraph 2.
61. One representative introduced the proposal made by his Government as it appears in paragraph 273 of the working document to the effect that an additional paragraph should be included concerning the provision of other measures either as an alternative to conviction or punishment, or in addition to conviction or punishment, where abusers of drugs have committed one of the offences referred to in paragraph 1. In the same context, several representatives pointed to the necessity of having a provision worded along the lines of article 36, subparagraph 1(b), of the Single Convention so as to safeguard the application of those provisions in that instrument as their absence in the new convention might lead to the interpretation that they were no longer applicable.