Summary overview of drug-laws and legislation trends in Colombia

Trend

Colombia is caught in the paradox of two opposing tendencies: one, led by past governments, is geared towards penalizing consumption while the other, spearheaded by the Supreme and Constitutional courts, paves the way towards decriminalization.

During his administration, President Álvaro Uribe promoted a process of re-criminalization of possession for personal use in Colombia, a tendency opposite to some other Latin American countries. Finally, on 9 December 2009, Congress approved a constitutional reform which prohibited the possession and use of drugs, although only administrative sanctions were to be applied.

At the same time, Colombia has taken steps to open the field for debate: the current president, Juan Manuel Santos, has declared to the international press that he is in favor of a discussion regarding drug legalization . For some years now, former president César Gaviria has been part of the Global Commission which advocates the decriminalization of consumption.

Domestic Law

The current applicable law is (to this day) Law 30 of 1986, known as the National Narcotics Statute (ENE: Estatuto Nacional de Estupefacientes). In 1994 a Constitutional Court Judgment —Judgment C-221—determined that the prohibition of consumption of drugs—established in Law 30—violated the constitutional right to “free development of personality” of Colombian citizens.

In December 2009, Congress introduced a constitutional reform by which Article 29 of the Constitution now prohibits the possession and consumption of narcotic or psychotropic substances, unless medically prescribed. In July of 2011 the new Statute on Narcotic Drugs, due to replace the 1986 Law 30, was filed for discussion in Congress.

Drug laws and trends in Colombia

Throughout the 20th Century, drug policies in Colombia have been characterized by their increasingly repressive nature, their lack of effectiveness and the large influence that the developing international legal framework played in their creation. In a short period of time, the country went from a disperse regulation system, which emphasized prevention and medical and administrative treatment, to an abundance of legislation regarding conducts and sanctions that encompass the whole drug cycle: production, commercialization, trafficking and consumption.

Moreover, the growing repression reflected a strong influence from the international legal framework led by the United States during the same period. Particularly over the last decades of the 20th century, as the importance of drug trafficking rose in Colombian economy and society, the country began to pursue the drug agenda developed in United States.

The increasingly harsh policies and zero-tolerance measures have not managed to put an end to organized crime networks. Policies aimed at reducing supply have been ineffective and have had a major impact on the prison system, due to the considerable increase in measures geared towards deprivation of freedom.

Current Legislation

In July of 2009 the Supreme Court affirmed the 1994 Constitutional Court sentencing, when it determined that drug possession for the purpose of personal use “cannot be subject to sanction”, when the incident takes place “in the exercise of their personal and intimate rights [and] the defendant did not affect the rights of others”.

In December of 2009, Congress introduced a constitutional reform by virtue of which Article 49 of the Colombian Constitution now establishes that: “The possession and consumption of narcotic or psychotropic substances is forbidden except under medical prescription. With a preventative and rehabilitating end, the law shall establish measures and administrative treatments of educational, prophylactic or therapeutic nature for persons who make use of such substances. Compliance with the above mentioned measures and treatments require informed consent on the part of the addict”.

In July of 2011, the minister of Interior and Justice developped a proposal for a new Narcotics Statute, the “National Statute for Drugs and Psychoactive Substances” which will allegedly replace the 1986 Law 30, though it was never formally presented..

In addition, Article 11 of the recently approved Law 1453 (Citizen Security Act) modified Article 376 of the Criminal Code by eliminating the expression “except as established for doses for personal use”. This could enable the  handing out of sentences between 10 and 30 years of imprisonment even to those persons found in possession of a personal dose, since the new criminal article does not distinguish between consumers, or persons in possession of a dosis for personal use, and persons with the purpose of profiting from sales.

Impacts of the legislation on the prison situation

In Colombia the involvement in drug offenses among the prison population is high. According to the National Penitentiary and Prison Institute (INPEC: Instituto Nacional Penitenciario y Carcelario), from the number of persons deprived of liberty, those involved in drug related offenses form the third largest group, surpassed only by offenses against property and crimes against life and personal integrity (murder).

By the end of 2009 there were 12,616 persons deprived of their liberty due to drug related offenses, which amounts to 17 percent of the national prison population. 

In Colombia there is a visible feminization of drug related offenses. While more men than women are imprisoned for drug crimes, the percentage of women arrested is greater than the percentage of men for the same type of offenses, in relation to the total prison population. Women who are arrested under drug charges are generally lower educated and of low income backgrounds. The possibility of losing their freedom is a small price to pay for the opportunity for earning money to support their families.  [See the chapter on Colombia on the Report on Prisons and Drugs, p. 44].

Overcrowding is a fact in Colombian prisons. As of 2003, there is a rising trend in prison congestion. In 2009 overcrowding reached 38.9 percent, an increase which reveals the deteriorating imprisonment conditions, affecting the rights of inmates. 

Attempts to reform legislation (Proposed legislative changes)

In July of 2011 the Minister of the Interior informally launched a reform proposal to current legislation: the new Narcotics Statute or “National Statute for Drugs and Psychoactive Substances”, which would replace Law 30 of 1986. The proposal establishes criminal sanctions for consumers. This new statute would involve changes to the Criminal Code specifically related to penalties and fines for already existing offenses such as trafficking, storage or sale of illicit drugs. The re-criminalization of the personal dose would mean that the use of any substance, even in a private setting where others are not affected, could also bring the risk of criminal charges. A provision was added to the effect that those persons who use mail or global networks to promote distribution or consumption of drugs shall also be punished.  

However, now that the personal dose is prohibited, the new rules of the game indicate that even those who decide to use any psychoactive substance in a private environment, without affecting the rights of third persons, could also be criminally prosecuted. The new statute establishes, among others, that a person could be sentenced to up to 18 years in prison for allocating the use of a building for the use of psychoactive substances [Paragraph taken from El Espectador, 7 October 2011].

The proposal has elicited reactions from several Colombian and international NGOs which ask for a national consultation on the matter. A group of civil society actors has worked on a counter-proposal to the government initiative for modifying Law 30 of 1986 or the ‘Narcotics Statute’. They ask the government for the formation of five working groups in order for civil society to have a concrete input in the topic.

Trends

The Green Party has presented a legislation initiative to decriminalize the possession of a personal dose. The sector favorable to ex president Uribe wants to force consumers to undergo treatment. The Conservative party has also presented a proposal to regulate the constitutional reform entailed by the initiative of the minister of Interior and Justice, Germán Vargas Lleras to reform the Narcotics Statute.

In the meantime, the Supreme Court continues to defend the possession of the minimal dose of drugs for personal consumption. The high tribunal considers that criminalization goes against the right to free development of personality. Even though drug possession in Colombia was forbidden under the constitutional reform of 2009, those who are caught with a minimal dose and can prove that it is for personal use generally do not face criminal sanctions. This has been confirmed in the ruling of the Supreme Court of Justice over the case of a young man in Tauramena (Casanare) who was sentenced to five years in prison for having been found carrying 79 grams of marijuana in his pockets. “The Chamber considers that in spite of the constitutional prohibition to possession and consumption of narcotic substances, the concept of personal dose has not disappeared from the legal order”, they indicated in the sentencing.