The Spanish Supreme Court has convicted the president, an administrator and two members of the Association of Cannabis Users "Pannagh" in Bilbao, for running a Cannabis Social Club. The penalty for the first two is 1 year and 8 months in prison, as well as a fine of € 250,000, and for the other two – which among other functions weighed and packaged cannabis – a penalty of 6 months in prison. The Supreme Court overturned the acquittal of the four by a Court in Bilbao in March 2015. Among the convicted is Martin Barriuso, one of the main promoters of Cannabis Social Clubs in Spain who wrote a briefing for TNI on the issue.
The sentence follows a ruling by the Supreme Court in a judgement of September 2015 – the court’s first one on such clubs – which determined that the deliberate and persistent organized collective cultivation and distribution of cannabis by an association of some 300 members open to new memberships is not allowed, even if such an association is legally established and pays its taxes. According to the Court such an act "fulfils the provisions of crimes against public health under Article 368 of the Penal Code, and does not fit in the principle of assumed non-punishable shared cultivation". The group’s "structure and functioning exceeded the philosophy" of shared consumption, which is allowed under certain conditions in Spain.
Supreme Court closes the grey legal loopholes that allowed Cannabis Social Clubs
With this third sentence in a row against the CSCs, the Spanish Supreme Court effectively closes the grey legal loopholes that allowed the clubs to operate, which might turn back the clock for the about 800 clubs that currently exist in Spain. How the authorities want to stop a phenomenon with wide support among the population and some local and regional councils remains unclear, however.
The ruling goes against a socially accepted way of access to cannabis without having to go to the black market. In Spain 52 per cent supports the sale of cannabis to adults. A survey in June 2014 showed that 77 per cent of Catalans believe it is better to regulate the associations than prohibit them. The issue of a sound regulation of cannabis from seed to sale now has to be taken up by the new parliament that has been elected on December 20. Hypothetically there is now a majority in parliament for some kind of cannabis regulation, although the proposals of the parties in favour (Ciudadanos, PSOE and Podemos) differ. Since no single party has a majority, coalition negotiations are going to be difficult.
The sentence against the members of Pannagh is exceedingly harsh. The Supreme Court charged that convicted acted "encouraged by the unfounded hope that their acts might be tolerated or that some courts might accept the thesis that these facts are legally irrelevant", ignoring the fact that the Provincial Court of Biscay in 2006 (Sentence No. 218/06) and of Alava in 2012 (Sentence No. 377/12), acquitted Pannagh and in both cases ordered the return of the cannabis that was seized. Therefore, the convicted did not have a "pious hope", but the certainty, based on several prior criminal proceedings that resulted in acquittals by lower courts, that their conduct had not been criminal, they say in a press release.
Contradictions and errors
The sentence is full of contradictions and errors. "We have been accused of having acted recklessly, while our so-called recklessness has been relying on the rule of law. They say it is irrelevant whether or not we are a non-profit association," explains Barriuso. "If the criminal act is the same whether there are profits or not, they are encouraging drug traffickers; those are the ones that are going to be earning the money. We have done everything transparently, with court judgments allowing what we did; we publicly defended what we did. We have been raided, but we won those court cases and they had to return the cannabis. We paid our taxes; we have acted entirely within the law, and now the Supreme Court says we have not sufficiently investigated that we were acting outside the law," said the president of Pannagh.
The fine of € 250,000 is exaggerated, since the Court did establish that Pannagh was a non-profit association. The Court also confirmed that Pannagh does not constitute a criminal organisation. The Basque Federation of Cannabis Users thinks that the Supreme Court's sentence confirms and reinforces the legal uncertainty around the phenomenon of cannabis social clubs. "The current situation shows that in the Spanish state sentences of the high courts are neither in accordance with the changes taking place in society, nor with local judicial decisions." The Federation does not understand how, on the one hand, there is a process of normalisation and local administrative regulations of the cannabis associations, while, on the other hand, "high court decisions, enforcement strategies, government officials and anti-drug prosecutors counteract the trend and are committed to exterminate the associations."
Sentence will not stop the cannabis movement
Those convicted have announced their intention to file a motion for dismissal before the Supreme Court prior to presenting an appeal before the Constitutional Court, as they feel that, among other things, their right to presumption of innocence, to a process with due guarantees and to proportionality in the sentencing have been violated. They have also announced their intention to appeal to the European Court of Human Rights in Strasbourg if necessary. "The sentence against Pannagh is political," says Barriuso. "But if they think that the sentence will stop the cannabis movement, they will be disappointed."
Meanwhile a twitter campaign has started to express solidarity with Pannagh and the convicted: #YoSoyPannagh (#IamPannagh). Please join.