Spain’s Bumpy Ride Toward Cannabis Regulation

During the last four months of 2015 the Spanish State Supreme Court condemned three associations of Cannabis consumers for alleged offences against public health. In its judgements the Court concluded the cultivation and distribution organised by Ebers Hemp Users and Study Association and Pannagh Association of Cannabis Users (Bilbao), along with Three Monkeys Cannabis Association (Barcelona) did not fit into the "not punishable" concept of collective cultivation (Cannabis Social Clubs) for personal consumption, which until now had been considered by many Spanish local courts as an argument to absolve these and other associations.

The condemnation of Pannagh, a standard-bearer for the Cannabis movement and its associations in Spain, is a significant blow. It was the first acquittal by the Provincial Court of Biscay (Basque Country) in April 2007 that gave a boost to Cannabis consumers across Spain who were seeking ways to develop their activities within a legal framework. It led to the creation of hundreds of associations throughout the country (especially in Catalonia and the Basque Country) where Cannabis could be cultivated and distributed to members under the watchful eye of authorities. However, in November 2011, police entered Pannagh headquarters (Bilbao) and arrested five of their members, including President Martín Barriuso. The police intervention netted 75 kg of Cannabis, the annual harvest for its 300 members. In April 2015, the Provincial Court of Vizcaya acquitted, after a judicial process lasting almost 3½ years, the association Pannagh. “No attempt to traffic was established, nor any intention to promote, favour or facilitate illegal 'drug' consumption, nor to spread it to third parties. There was no crime against public health, so we have been acquitted”, said Barriuso. “It was not proven that we were promoting anything illegal”.

However, the Public Prosecutor’s office lodged an appeal that the Supreme Court partially upheld. Along with the President, the Treasurer and Secretary were accused of drug trafficking. The Prosecutor called for sentences of 4½ years along with an additional 1½ years for belonging to a 'criminal' group. Members of Pannagh find the reasoning behind the ruling “full of errors and blatant contradictions” and believe it does not consider crucial data that was “relevant for the defence”. Pannagh alleges despite the fact its activity was deemed to be criminally irrelevant by the Provincial Court of Biscay (in 2006) and by the Court of Álava (in 2012), both cases ended with the return of seized Cannabis to Pannagh. The ruling states the accused parties acted in a way that was “encouraged by the unfounded hope that their actions could be tolerated or believing that some judicial authorities could accept the thesis putting forward the criminal irrelevance of the actions”. However, “those sentenced did not have an ‘unfounded hope’ but rather the certainty, based on previous legal proceedings, that their conduct was not criminal".

This result is consistent with an earlier ruling handed down on Ebers in which the Supreme Court had ruled and the Public Prosecutor had appealed. The appeal was upheld and five members of that association were sentenced, as perpetrators of the crime of illegally growing 'drugs', to jail time ranging between 3-8 months. An official announcement by the EUSFAC (Federation of Associations of Cannabis Users in the Basque Countries) was released in October, 2015 in response to the harsh sentencing; "We are disappointed and perplexed with a legal decision that harms the public health that it claims to protect. This ruling indirectly condemns, stigmatises and marginises hundred of thousands of people that use Cannabis throughout the state".

Along with similar charges laid against Barcelona's Three Monkeys, the Ebers charges are seemingly paving the way towards criminalisation of the activity of all Cannabis social clubs in Spain, as according to the Supreme Court’s Criminal Chamber, the structuring and functioning of these two clubs went beyond the limits of shared consumption and infringed upon public health, but many of the allegations in the ruling contradict those made by the Provincial Court. While the Provincial Court ruled there was evidence of “management of the delivery of substances and of the person carrying it out”, according to the Supreme Court there was “a lack of control”. Likewise, the entity went from being comprised of members that accepted “growing for private consumption”, to “a nucleus of people” who “organise the association’s structure; they provide and prepare management, supplies, distribution and growing ... and they make these structures serve a wide and indiscriminate group of users".

The sentenced parties intend to lodge a suit for nullity of proceedings to the Supreme Court and a subsequent appeal to the Constitutional Court, as they believe that their “right to the presumption of innocence, to a trial with due processes and proportional sentences” has been violated. They even propose submitting an appeal to the Court of Human Rights in Strasbourg if necessary. “The Pannagh association want to denounce the fact that several of the association’s workers have been punished for activities that, as shown in the trial, and as outlined in the revoked sentence, were the initiative and responsibility of all of Pannagh’s members, according to its statutes and through an assembly agreement”. The association also makes it clear they will not be intimidated or throw in the towel, as this is clearly “a political ruling, aimed at dismantling the social reality of Cannabis within the Spanish state”.

“At Pannagh we encourage people to continue fighting for a change to drug policy that puts an end to the unfair current situation and to keep driving forward the promising debate about Cannabis regulation that is taking place in a large part of the world, a debate that Pannagh has tried to contribute to since its establishment in 2003”. This is the concluding phrase of the announcement issued by Pannagh after the ruling from the Supreme Court that partially upheld the prosecutor’s appeal against the ruling of the Court of Bizkaia that absolved them of the crime of drug trafficking for growing Cannabis for their members.

The ruling has serious consequences for the pioneering association from Bilbao, with the President and Secretary sentenced to 1 year, 8 months in prison and fined 250,000 euros each. Two other members will have to serve 6 months, but the Treasurer was absolved through an omission by the Court. Pannagh believes “this is a political sentence, aimed at dismantling the Cannabis association movement and based on a completely distorted view that is behind the times in terms of the social reality of Cannabis in the Spanish state”. The Federation of Cannabis Associations and other organisations have already shown their support to the members.

In 2016, Spain will attain its 50th anniversary of prohibitionist legislation, which commenced with the ratification on 3 September, 1966, of the UN Single Convention on Narcotic Drugs of 1961. Unlike other countries though, the Spanish Supreme Court decided in 1974 that mere consumption and possession of 'drugs' for personal use should not be punished by criminal law. Consistent with that initial decriminalisation of consumption and possession not intended for trafficking, the Supreme Court also decided that so-called collective cultivation or the providing of a 'drug' to an habitual consumer cannot be considered a crime when this serves compassionate purposes, such as to alleviate any withdrawal.

In 2001, legal experts 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 centres that would be closed to the public but where access would be restricted to Cannabis consumers". The report provided an interpretation, according to which, people who consume Cannabis may use their constitutional right to associate, in order to organise the cultivation of their supply without having to recur to the illicit market. The association rents a space and grows plants for the members, according to their estimated consumption in order to avoid a surplus. Expenses incurred by the association (rent, equipment, travel, administration etc.) are added and divided by the total harvest so the contribution each is supposed to pay (calculated in euros / g) covers the costs in proportion to his/her consumption.

Spanish Cannabis associations are not meant to sell Cannabis, because they do not own the plants, but are care-takers of what remains the property of the members. They are not meant to make profit, but to provide a service to their members, independent of the size of the harvest. What counts are the benefits enjoyed by the members: no uncertainty about quality or possible adulteration of the product; with a reliable source of counselling and information on Cannabis; a transparent model for the provision of Cannabis as a first step towards a true normalisation.

Due to the absence of any national political initiative to create a legal framework to regulate the model, the newly created associations started their own interpretations 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 a 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 seems 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. 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 in the short term, as many of the legally established clubs are expected to close in order to avoid prosecution.

Meanwhile everybody knows in the longer term, central powers in Madrid cannot permit themselves to enforce a highly unpopular total ban on Cannabis, among other substances, because of the ammunition this may give to the call for regional autonomy. A real step forward for the entire country in the form of a new law is unavoidable, though it seems unlikely this will happen any time soon, due to the unprecedented political crisis that arose in Spain after the inconclusive general election on 20 December. 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 possession 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 its 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.

In January 2016, Pannagh published a 'Manifesto Of Support' regarding the concerning judgements made by the Spanish Supreme Court against four members of their association for an alleged crime against public health, highlighting the following;

• the Provincial Court of Biscay stated in their original acquittal that Pannagh is a "legally constituted association" and the confiscated Cannabis was intended exclusively for consumption of members of the association themselves
• the Supreme Court altered the account of the proven facts in order to conclude the existence of criminal offences. Its main argument is that although Cannabis produced by Pannagh was never handed over to non-members, there was a potential risk of leakages to people outside the association by the members.
• the activities of Pannagh have been repeatedly subject to court decisions that have affirmed their legality (Judgment nr. 218/2006 of the Provincial Court of Biscay and nr. 377/2012 of the Court of Álava) both cases ended with the return of seized Cannabis to Pannagh.

These resolutions have been widely disseminated through the media and are well known, just as the activities of Pannagh, which have clearly been allowed for years by various public institutions. Therefore, instead of "unfounded hope", they were rather driven by an informed conviction, apparently shared by several courts of justice.

Helena Echeverri, a criminal lawyer who has spent her career defending the Cannabis sector, analysed the scenario that Cannabis Social Clubs face in Spain; the Supreme Court's recent negative rulings establish jurisprudence and prevent associations with large numbers of members from dispensing Cannabis. The solution involves sidestepping the courts and advocating for change at the polls. However, one thing seems clear for now, Cannabis Social Clubs are absolutely illegal and those in violation of the High Court's requirements will be moved against.

The Spanish Supreme Court has opted for a very restrictive interpretation of the rules regarding shared consumption, which hinders the activity of clubs that currently exist. The court has outlined parameters in order to determine if the activity of a Cannabis association is criminal or not. These rules will be very useful for Provincial Courts which usually have widely varying opinions when it comes to dealing with these matters. However, in the end, everything will depend on the analysis of each specific case.

Criteria that a Cannabis Social Club must comply with in order not to be deemed illegal;

1. The Association must be comprised only of habitual Cannabis users who can show this and; not be open to an indiscriminate number of members. This limitation is aimed at preventing third parties that have nothing to do with the club’s principles from using it illegally.
2. Consumption must take place in a closed-off area in order to prevent it from being promoted in public and prevent it from reaching those not members. Meetings must take place between small numbers of users in order for them to be considered a “private affair that is not of a public nature”.
3. People associated with the Association must provide identification to prove that they really are habitual Cannabis users.
4. Consumption must be immediate in order to ensure the product does not leave the premises and to stop it from falling into the hands of third parties that should not have access.
5. The quantity of Cannabis that Associations possess must be “minimal” and suitable for consumption in a single meeting.
6. Associations are urged to prevent storing large quantities of the plant as that is considered to be the “seed of danger that the legislator wants to banish” (with regard to the trafficking of drugs).
7. The management body of the Association aims to ensure all of the above measures are fulfilled, i.e., they should have the ability to control and fulfil all of the aforementioned requirements.

Given that analysis of circumstances will depend on each case, greater precision is needed in order to know the boundaries where the activities of a Cannabis Social Club may or may not constitute a crime. Until there is complete regulation, users will remain defenceless. Spaniards now know it is not legal for a club with a large number of members to grow and dispense Cannabis. Dispensing is considered legal only by associations with small numbers of members, from 10-20 (although the exact number is to be determined by legislators). It is also essential that product not leave the premises since there is a risk of third parties being exposed to it, that establishments harbour no intention of making a profit and that all the requirements specified in the rulings be complied with.

Madrid's La Santa Le Club's case was thrown out and their Cannabis returned, so under Spanish law they may allege a "prohibition error", which means if a judge has previously ruled they were operating properly, there is no reason they should be found non-compliant now. However, in view of the delicate overall situation, the legal recommendation is for associations to assess whether they are properly organised, not open their doors to the police without a search warrant, and get members tested, so that if they later end up in court, they can prove they have been regular consumers. If convicted and subject to a final sentence of more than two years of imprisonment, the judge may waive incarceration if one can present results of such tests and agree to undergo "detoxification".

Helena Echeverri has spent years warning people that she did not see a green future, but rather a "very black" one and that the only way to change this was to take the political fight to Parliament, not to the Provincial or other courts. She does not, however, trust any political party. She states the Partido Popular (PP), along with the PSOE, have "pursued the sector" the most and defines them as enemies. The PP has acted in a repressive way to end substance consumption through punishment. An example is the Public Safety Act which punishes not only consumption but cultivation that can be witnessed by third parties. In her opinion, the worst thing is that the Partido Popular "continues to believe that Cannabis is worse than alcohol" and spruiks that "smoking a joint before going to bed is the worst, because you'll end up on heroin, or it will kill neurons".

As a criminal lawyer she has never seen anyone commit a violent crime (like hitting their partner or stealing) just because they used Cannabis. In contrast, she sees such behaviour every day as a result of alcohol consumption. "But if we were to try to ban it in a country like Spain, many wineries, which constitute a lobby, would thwart it. There are many interests involved .... ". She points out that every prisoner costs taxpayers around 69,000 euros, and most of this country's inmates are in for crimes against public health", change is more necessary than ever. She cites as an example the 'puritan' United States (US) which has nevertheless legalised dispensing in some states. This is a model that Spain might want to consider following, if only because the US is almost always a forerunner.

The Spanish courts have taken a drastic course and the only way to turn things around is at the polls and through the critical thinking capacity of voters, and the Cannabis community. In light of the latest political developments, however, it seems that a positive scenario will take time to materialise. 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 regulation that eliminates the current legal uncertainty around cultivation of plants for personal consumption. In any state that calls itself civilised, adults 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.

Adapted from;

ENCOD Bulletin Drug Policies In Europe 31/12/15, Pannagh Supreme Court, Spanish Supreme Court Cannabis Crime, Supreme Court Opens Door to Criminalisation Social Cannabis Clubs, The Pannagh Manifesto, Green Fight Parliament