The end of cannabis tolerance in Spain

The new decisions of the Constitutional Court
Martín Barriuso
Tuesday, January 2, 2018

After decades of relative tolerance towards Cannabis in Spain, the Constitutional Court decides that cannabis clubs are criminal. Years of government criminalizing strategy pay off. The national parliamentary debate can no longer be postponed.  In Spain, the Constitutional Court has decided that Cannabis Social Clubs infringe the law and that their activities cannot be regulated by regional parliaments if the Penal Code is not modified. Fifty years of relative tolerance come to a closure and a new stage, where legal uncertainty and repression will be the keynote, is now open. A new national regulation is the only way to overcome the situation.

I will not easily forget December 19, 2017. All of a sudden I had dozens of Whatsapp notifications, text messages, and lost calls on my phone. The EFE agency had just announced that the Constitutional Court had declared null and void the Supreme Court’s sentence against four members of the Pannagh Association, including myself, and the media was starting to spread the news. Our lawyers had not received the decision, but the fact that the source was EFE made us all believe that the information was true. In any case, we did not have time to reflect much: within an hour I was already answering the first radio interviews.

We knew that a decision on the Ebers case, another association in Bilbao waiting for a response from the Constitutional Court, was about to be revealed, so we did not rule out an error. However, the joy was immense. The following morning, Hugo Madera, director of Soft Secrets Spain, confirmed what we feared: it was an error and the only decision that was released was the one on Ebers. But already the false news circulated through the media and, although some corrected the information right away, others have not yet done so. In a few hours we went from euphoria to disappointment.

There is no Place for cannabis associations in the current law

Beyond the natural disappointment, the decision on Ebers gives us hope for a positive outcome in our own case, since the Court has declared the initial decision invalid, it would make sense that, for the same reasons, the decisions on Pannagh and Three Monkeys are also declared invalid. However, one never knows. On the political level, nonetheless, the Court’s decision is a real problem, as it definitely closes the doors to Cannabis Social Clubs in Spain.

The ruling distinguishes two parts in the Ebers appeal: One related to the principle of legality and another that has to do with the right of defence. To avoid boring you with legal terms, the first part can be summarized by saying that the Constitutional Court considers that the Spanish Penal Code, in its articles referring to illegal drugs, is sufficiently clear and concrete, and that the manner in which the Supreme Court interprets it is correct, predictable and proportionate. Why is this? Because the Court so decides, period.

Thus, without hardly arguing, the Constitutional Court closed a decades-long debate in which prestigious jurists have pointed out the ambiguity of the Penal Code on this point, something that many courts, including the Supreme Court, have recognized. But the recognition of this ambiguity would imply reforming the Penal Code, and neither the government nor the most influential judges (who dominate both the Supreme and the Constitutional Courts) are willing to do this, since they fear that in this legal reform we may move towards greater tolerance. Hence, the debate is closed by the authoritarian way: this is how it is because we say so, and there is nothing more to say. Rajoy’s typical style.

As for how the law is interpreted, the decision states that, since cannabis is dangerous to health, any use not authorized by the Drugs Agency is illegal, although without being a crime. However, any attempt to supply cannabis for a purpose other than self-production is a crime, whether for profit or not. From this perspective, clubs cannot be considered a form of self-consumption, so their activities are considered criminal. This closes the last loophole that allowed Cannabis Social Clubs to operate.

On the other hand, in the second part, the Court admits that the right of defence of the convicted has been violated. After being acquitted in the oral judgement stage, they were later sentenced for issues that did not come out during the trial (specifically if they were aware or not that what they did was a crime) and without directly hearing them. Unlike almost all European countries, in Spain there is no judicial instance to appeal the decisions of the Supreme Court. The Constitutional Court only deals with constitutional rights violations and only 1% of the appeals presented to it are admitted for processing.

In addition to this irregularity, there is also the fact that the Supreme Court refuses to hold oral hearings, so that it has condemned many people without giving them the chance to be heard. Hence, Spain has been condemned ten times by the European Court of Human Rights, and it seems that someone has decided that Spain should avoid condemnation an eleventh time. Thus, by returning the case to the Supreme Court, the intervention of the EU courts in the matter is avoided and, in the meantime, the underlying issue – the legality or illegality of the clubs – is resolved according to the most prohibitionist sectors.

Only the Government may regulate cannabis

Unfortunately, the issue did not end there. The day after the decision on Ebers was released, the Constitutional Court ruled in favour of the Spanish Government’s appeal against Law 24/2014, which regulates cannabis user groups in Navarre. Nineteen pages were enough for the Court to render null and void a law, which was approved by a large majority in the Parliament of Navarre after a successful popular legislative initiative. The law is considered unconstitutional because a regional law cannot go against the Criminal Code and this is what, according to the high court, makes the Navarre law, “whose purpose is, as it is deduced from its own title, provide legal coverage to behaviours that the criminal legislator considers criminal”.

As the Supreme Court has already established that the cannabis associations can neither grow nor distribute cannabis without committing a crime, no one can regulate that activity now, except Congress and the Senate, for which they would have to modify the Criminal Code, something that requires an absolute majority. Thus, neither the law of Navarre, nor that of the Basque Country, nor that of Catalonia, the last to be approved, have legal validity. And at the same time, it prevents other regional parliaments that were interested in the regulation of self-cultivation and cannabis clubs (Balearic Islands, Valencian Country, Asturias, etc.) from moving forward.

We cannot say that both decisions come as a surprise, but it is striking how the Constitutional Court has made them known, almost simultaneously, in the midst of Christmas and coinciding with the Catalan elections, which have been the focus of the media for weeks. In just two days and very quietly, the Constitutional Court has ended the clubs and prevented anyone other than the national parliament from regulating them. Several decades of relative ambiguity and tolerance towards cannabis are closed at once. The usual Spanish style of governance, where laissez-faire and calculated ambiguity are fundamental elements, has given way to an approach in the most clearly repressive line that dominates the rest of Europe. The government was determined that Spain would stop being a reference in terms of alternative policies on cannabis and it seems to be getting there.

It is possible that both the decision on the Pannagh proceedings and the one on the Cannabis Associations Law of Catalonia present differences with respect to what was determined in the case of  Ebers and the Navarre law, since these two cases raise the most complex legal issues, but it is not credible that they will challenge the two principles now established: the illegality of user clubs and the incompetence of autonomous parliaments to regulate them. The judicial route, therefore, seems closed.

Meanwhile, the Responsible Regulation (RR) platform has announced that it will go to the European Court of Human Rights (ECHR) for the Ebers case. Prestigious lawyers consulted doubt that it is possible to go to Strasbourg without a final conviction, and a well-known expert on the matter, Tom Blickman, of the Transnational Institute (TNI), immediately expressed his doubts about the practicality of doing so, given the impact that a negative answer would have in the EU. Blickman believes (and I agree) that this subject should be coordinated at the European level and that the most correct approach to bring this issue to the ECHR is the violation of human rights. Let’s hope that RR gives up carrying out this initiative unilaterally, given its scarce representativeness among cannabis associations and the fact that Ebers, according to many, is not the best example to turn when it comes to discussing the CSC model.

The only way out: To modify the Penal Code

Of course, it seems that the government and the most prohibitionist judges were seriously concerned. The change in public opinion, increasingly in favour of cannabis regulation, the popularity of the clubs and the regional parliamentary initiatives were cornering the government. The regulation proposal presented by the Study Group on Cannabis Policies (SGCP) appears to have been a factor in the rapid closure of a process that began in 2013, when the State Attorney General’s Office (which in Spain is directly appointed by the government) ordered that cannabis associations be accused of being criminal organizations. This allowed recourse to acquittals before the Supreme Court, which is what has finally led to the worst possible closure of the legal vacuum that allowed the existence of CSCs.

It is no secret that the government has been trying to put an end to the CSC model for some time, and the ineffable Francisco Babin, responsible for the National Plan on Drugs, had warned for years that sooner or later the courts would take charge of that. He said it with the security of someone who knows that he is backed up by a hierarchy close to the government. In the recent International Congress on Cannabis of Catoira, sponsored by the Plan, Babin himself gave us a hint of what we can expect from now on.

The second conclusion is that, as I stated in a previous article, the biggest and most professional cannabis clubs will not be able to continue operating and, if they do, those running them will take the risk of going to prison and getting very high fines, since as of now pleading ignorance will no longer be a valid argument. Only associations with a small number of members and a horizontal structure are likely to be included in what the Supreme court has called “collective cultivation” and avoid repression, and even then, the fact that limits are not at all clearly established will create legal insecurity.

Therefore, it is more pressing than ever to open the debate on cannabis regulation in the Spanish Parliament, given the fact that autonomous parliaments can no longer do so. A motion on cannabis in the Mixed Commission on Drugs should be created as soon as possible, while promoting the social debate at all levels. In addition, all groups involved in the phenomenon of drug use from the perspective of risk reduction should respond to this reversal executed by the Constitutional Court that sets us back more than forty years. Otherwise, the Spanish policy on drugs, which in many respects was one of the most tolerant and advanced in the world (which is not much to say), can be stuck in the stalest prohibition for many years.