ENCOD BULLETIN ON DRUG POLICIES IN EUROPE
Spain’s bumpy road towards cannabis regulation
During the past four months, the Spanish State Supreme Court has condemned three associations of cannabis consumers for alleged offenses against public health. In its judgements the Court concludes that the cultivation and distribution organized by the associations Ebers and Pannagh (Bilbao) and Three Monkeys (Barcelona) do not fit into the “not punishable” concept of collective cultivation for personal consumption, which until now had been considered by many Spanish local courts as an argument to absolve these and other associations.
Especially the sentence against Pannagh is a significant blow to the Spanish cannabis movement, as it was precisely the first acquittal of this association, by the Provincial Court of Biscay (Basque Country) in April 2007, that gave a boost to cannabis consumers in Spain seeking ways to develop their activities within a legal framework. It led to the creation of hundreds of associations throughout the entire country but especially in Catalonia and the Basque Country, where cannabis could be cultivated and distributed to members under the eyes of the authorities. However, the lack of a legal framework to regulate the situation remained a sword of Damocles. Pannagh suffered a new police intervention in November 2011 in which 75 kilos of cannabis, the annual harvest for its 300 members, were confiscated. Four years later the Supreme Court condemned Pannagh’s president, Martin Barriuso and its Secretary to prison terms of 1 year and 8 months and fines of 250,000 euros each. If this sentence is not revoked, it will put the legal security of Spanish cannabis consumers back to the level of the past century.
In 2016, Spain will attain its 50th anniversary of prohibitionist legislation, which commenced with the ratification on September 3, 1966, of the UN Single Convention on Narcotic Drugs of 1961. Unlike other countries though, the Spanish Supreme Court already decided back in 1974 that the mere consumption and possession of drugs for personal consumption should not be punished by criminal law. Consistent with that initial decriminalization of consumption and possession not intended for trafficking, the Supreme Court also decided that the so-called collective cultivation or the providing of a drug to a habitual consumer cannot be considered a crime when this serves compassionate purposes, such as to alleviate their withdrawal.
In 2001, legal experts Susana Soto and Juan Muñoz, at the request of the Drugs Commission of the Regional Government of Andalusia, produced a report in which a set of criteria were established that would make it possible to set up establishments in which cannabis could be obtained for both recreational and therapeutic purposes while respecting the legal framework. “These initiatives would have a place in our legal system if configured as centers that would be closed to the public but where access would be restricted to cannabis consumers.”
The report of Soto and Muñoz provided an interpretation according to which people who consume cannabis may use their constitutional right to associate in order to organize the cultivation of their supply without having to recur to the illicit market. The association rents a space and grows plants for the members, all according to their estimated consumption in order to avoid a surplus. The expenses incurred by the association (rent, equipment, travel, administration etc.) are added, and divided by the total harvest, so that the contribution that each is supposed to pay (calculated in euros / g) covers the costs in proportion to his/her consumption.
Cannabis associations are not meant to sell cannabis, simply because they do not own the plants, but simply take care of what remains the property of the members. They are not meant to make profit, but to provide a service to their members independently of the size of the harvest. What counts are the benefits enjoyed by the members: no more uncertainty about the quality and possible adulteration of the product, a reliable source of counselling and information on cannabis, a transparent model for the provision of cannabis as a first step towards a true normalization.
Due to the absence of any national political initiative to create a legal framework to regulate the model, the newly created associations soon started to make their own interpretation of the original code of conduct developed by Pannagh and other pioneer activists. In the margin of the non-profit distribution model some people could not resist the temptation to replace transparency and accountability by commercial strategies in order to obtain a quick benefit from what was conceived as a new legal market in cannabis. In many cases, associations became clubs and members became customers. In cities like Barcelona or San Sebastián, local politicians started to develop a regulatory framework for clubs to operate regardless of the approval of the central government in Madrid. Investors from around the world arrived in order to ‘buy a cannabis club’, attracted by websites with promotional texts such as: “since the opening of a new generation of cannabis clubs and the appearance of a more demanding consumer, Barcelona has stepped ahead of coffee-shops from Amsterdam. Nowadays, some dispensaries in Barcelona have nothing to envy the medical marijuana dispensaries from Colorado and California.”
While for the members of Pannagh, forming a Cannabis Social Club represented an necessary act of civil disobedience intended to challenge an unjust law and provoke discussion in society about the urgent need for change, for the new generation it seemed more and more a financial investment. Consequently the movement of Spanish cannabis activists, a tiny group of people who struggled for more than 10 years to obtain this remarkable progress, became affected by high tempered conflicts over the strategy to run.
Now, the sword of Damocles has not only fallen on Pannagh. The judgement of the Supreme Court, inspired by a last convulsion of conservative Spain to stop the process towards cannabis regulation, is expected to have drastic consequences on the short term, as many of the legally established clubs are expected to close in order to avoid prosecution.
Meanwhile everybody knows that on the longer term, central powers in Madrid cannot permit themselves to enforce a highly unpopular total ban on cannabis, among others because of the ammunition that this may give to the call for regional autonomy. A real step forward in the entire country in the form of a new law is unavoidable, though it seems unlikely that this will happen any time soon, due to the complicated political situation that arised in Spain after the general elections of December 20th.
Therefore it is crucial that the sentence on Pannagh is revoked, and that the association receives all the support it needs in order to fully implement all possible resources to obtain justice, without having to face a financial nightmare.
The case will also be of great significance for the debate in Europe. After the first police operation against Pannagh in 2005, the Italian MEP Giusto Catania put this question to the European Commission:
If the Spanish legislation allows an association of users of cannabis to operate, and if there is a possibility of cultivating cannabis plants legally, provided it is done without commercial purposes, how come the Spanish justice proceeds against a legally constituted association that cultivates for its own use? Is this not an inconsistency which undermines the principle of legal security and the right of association?
The response was very clear: The European Union does not have any competence on the regulation of activities related to posession and consumption. EU Member States are obliged by the UN and EU legislation to prosecute everything that has to do with commercial distribution of illicit drugs. But this obligation disappears in the case of cultivation for own use, as this is not covered by the Framework Decision of the European Council. Cultivation of cannabis for personal use is defined by national laws. A similar margin exists in the UN Single Convention.
The Spanish Government, like any other, is therefore competent to establish an own administrative regulation for the individual or collective cultivation of cannabis consumption, determining the amount of plants that each person may possess, without violating any international agreement at all.
In the coming days Pannagh is expected to announce its plans to take the case to a higher level, which could be the European Court of Human Rights in Strasbourg. The follow up concerns all those fighting worldwide for a regulation that eliminates the current legal uncertainty around the cultivation of plants for personal consumption. In any state that calls itself civilized, adult people ought to be allowed (under certain conditions such as maximum number of plants or equivalent area for indoor as well as outdoor cultivation) to grow any plants for individual consumption and share this with others.
We are all Pannagh!
By Joep Oomen
NEWS FROM THE SECRETARIAT
The appeal to support the Encod Peace Brigade to UNGASS has resulted in a total of 3.500 euros so far. We express our gratitude to all those who donated and have decided to continue the appeal until January 31st. The plans for the event will be downsized a bit, but they will continue.
If you cannot support with money, you can also participate by sending the Encod letter asking parliamentarians to organize a true debate on drug policies in your country.
On 22 January 2016, in Antwerpen (Belgium) Encod in cooperation with the Latinamerican Federation, will organise a debate on the lessons that Europe can learn from Latinamerica in drug policies, with the participation of representatives of the Embassies of Uruguay and Mexico. Entrance is free, languages are Spanish and Dutch. You are all very wellcome!
Encod wishes you a peaceful and healthy New Year!