In Spain several interesting models for legal cannabis cultivation have been developed. The supreme courts of both Catalonia (1997) and the Basque Country (2006) have sentenced in favour of Spanish versions of the ‘cannabis social clubs’.
Pannagh has 70 members. The club has rented a green house, where cannabis is cultivated and harvested. The association monitors the entire process of cultivation, makes the necessary purchases (seeds, growing material etc.) and controls the plantation. Every member has a right to receive a fixed amount for personal consumption: 3 gr. for medicinal users, 1 gr. for others. The cannabis is sold to medicinal users for 3 euro/gramme and to others for 4 euro/gramme. Nobody receives more than what he/she considers as for personal consumption. Non-members have no access to the harvest of the club.
Members oblige themselves not to pass on cannabis to third persons. The association is their safe source of cannabis, and they are not interested to risk loosing it. The authorities can be sure that cultivation and distribution of cannabis takes place in a controlled way.
On 14 March 2006, the Section 6 of the Provincial Court ( Audiencia Provincial) of Bizkaia (Basque Country, Spain), decided to close the case against three members of the association Pannagh and the owner of the field which this association had hired. These persons had been detained on 3 October 2005 during the harvest of these plants that the association has grown for the personal use of its members. The closure of the case is now definitive, as the attorney has not presented any appeal against the decision.
1. The legal trial
The Provincial Court has sentenced that there is no indication for any crime, as this plantation fulfills the requirements set by the jurisprudence of the Supreme Court in order to be considered as ‘shared use’, in other words, the previous condition of the participants, the closed circuit model that avoids the entrance of third persons and the absence of commercial purposes. Besides, the Court considers the fact that Pannagh is a legally constituted association excludes the clandestinity that is supposed to belong to a criminal organisation dedicated to illicit drugs trafficking. The facts go back to 3 October 2005, when the Municipal Police of Bilbao, after having detected our plantation in connection with an investigation into presumed drugs trafficking, ordered an intervention to seize all plants and to detain the the people harvesting on the terrain. The seized plants amounted to a weight of 150 kg bruto. After the case was dismissed the plants remained at the disposition of the court. Apparently, they were dried and non-psicoactive parts were removed, as when they were submitted to the analysis of the Governmental laboratory of Bizkaia, their weight had been reduced to 17,400 kg.
Pannaghs defense had requested the closure of the case, alleging that the plants had been destinated for the consumption of the members of the association and not the illicit trade. The attorney refused to close the case, although he recognised that the destination of the marihuana had effectively been social consumption and accepted to drop the charge of illicit trafficking which had been part of the accusation in the beginning.
2. What to learn from this case
Pannagh wants to express its satisfaction with the decision of the Provincial Court, whereas our activities are legal and directed only towards the necessities of our members. In the framework of current drug policies, it is perfectly possible to create a closed circuit without commercial purposes in order to be able to dispose of cannabis (or other psychoactive plants or substances). We denounce the disproportionate character of the measures that were taken against us. It is absurd to detain people who are perfectly identifiable and whose activities are public. It would have been enough to send us an invitation in order to receive our declarations. Neither do we understand the seizure of plants without previously having considered if there was a criminal offence. We claim the return of the seized plants.
In its sentence, the Court recognises the medicinal use that would have been made with the seized plants, so it is incomprehensible that ill people cannot obtain a plant that is useful to reduce their pains. For those who were not using for medicinal purposes, the paradoxical result has been that they are now obliged to supply themselves on the illegal market. 3. Legal security for cultivation Pannagh exceeds once again the end of legal insecurity with regards to cultivation for own use. It is absurd to see hundreds of detentions and cases against small growers which then end up closed. This situation increases the arbitrariety and violates the rights of those who grow for own use in order not to depend on the illegal market.
Therefore, the Italian member of European parliament Giusto Catania, member of the Committee of Civil Liberties, Justice and Home Affairs, author of the the report on EU drug policies in december 2004, presented a written question to the European Commission concerning Pannagh. Catania asked the Commission if it did not consist an incoherence, apart from an attack to various rights that are recognised by European legislation, that in a nation where personal use of drugs is depenalised, and where a legal association of consumers can be formed, legal action can be taken against this association for growing for personal use.
The reply of the Commission to Catania was very clear: the European Union does not have any competence on the regulation of activities related to posession and consumption. The Member States are abliged by the UN and EU legislation to persecute 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, according to Commisioner Frattini, is not covered by the Framework Decision of the Council. Cultivation of cannabis for personal use is defined by national laws. The Spanish Government is therefore competent to regulate the cultivation for own use like is the case of other EU Member States, determining the amount of plants that each person may possess for own use.
Pannagh gets cannabis back from police after confiscation. Cannabis Social Club recognised as a legal association in Basque Country
On Wednesday 25 april 2007 the Bilbao Cannabis Social Club Pannagh received the cannabis that was confiscated from them by the police on 3 October 2005. Pannagh is a legal association of cannabis consumers who have established a collective plantation meant for their own personal consumption. In full harvest time in 2005, the police intervened in the green house and took the plants. Three members of Pannagh, among them Martin Barriuso, were arrested. The Provincial Court of Vizcaya filed the case, as it acknowledged the legally constituted association that had nothing to do with a criminal organisation dedicated to drug trade. After many months of trial, Pannagh has obtained the return of the confiscated cannabis. The verdict is historical as there are no precedents of the return of cannabis to people from who it was confiscated in the jurisprudence. This verdict is a recognition of the Freedom to Farm for personal consumption and of the entire cannabis movement.