UNDERSTANDING MARIJUANA LAWS IN SPAIN

Cannabis social clubs (CSC) are non-commercial organizations of users who get together to cultivate and distribute enough cannabis to meet their personal needs without having to turn to the black market. They are based on the fact that the consumption of illegal drugs has never been considered a crime under Spanish legislation. Taking advantage of this grey-area, private clubs that produce cannabis for non-profit distribution solely to a closed group of adult members have existed for years.

Since their appearance in 2002, CSCs have enabled several thousand people to stop financing the black market and to know the quality and origin of what they are consuming, whilst creating jobs and tax revenue. All of this has happened without having to withdraw from existing UN drug treaties.

 

HISTORICAL AND LEGAL PRECEDENTS

Spain signed the UN’s Single Convention on Narcotic Drugs in1966. The following year, this resulted in the approval of Law17/1967 on Narcotic drugs establishing that the possession of illegal drugs would only be allowed for medical or scientific use. However, the law only stipulated the confiscation of prohibited substances and did not designate any other sanctions. In 1973 the crime of drug trafficking in its present form was incorporated into criminal law.

The following year the Supreme Court made the first judgment establishing that drug consumption and possession for consumption are not criminal offences. This created a jurisprudence that was strengthened by subsequent decisions, establishing that shared consumption, giving drugs for compassionate reasons, and joint purchase by a group of addicts -as long as it did not involve profit-seeking -were not crimes either. However, this decriminalization did not lead to clear regulations on production and possession for personal consumption.

Inters of cannabis there are Public Prosecutor guidelines on the quantity of cannabis that users may have in order for possession not to be considered a crime. With regard to plants, which may be cultivated for personal consumption, there are no guidelines, which mean that interventions vary greatly depending on the region and on the personal and ideological attitude of the police or judges involved.

This causes considerable legal insecurity, which results in many police interventions for small cultivation that nearly always end up with the files being closed or the perpetrators acquitted. At present cannabis trafficking is punished with prison sentences of between one and three years. A first offence does not normally result in imprisonment, as Spanish legislation holds that sentences of up to two years of prison are suspended when person has no previous criminal record.

However, if there is a second prison sentence then the sentences are added together, which means that there are thousands of people in prison in Spain for cannabis trafficking. Serious cases (organized trafficking, large quantities, selling to minors, etc.) get between three and nine years. In both instances large fines are also imposed. These are calculated on the basis of the market price of the confiscated goods. With regard to possession and consumption, these are still theoretically sanctioned with confiscation when drugs are found in private residences.

In practice this usually results in impunity as private residences are inviolable, except under court orders or in the case of being caught in action. In public places, pathways and establishments, in addition to confiscation of the substance, there are also sanctions of between 300 and 30, 000 Euros, since the 1992 Law on the Protection of Citizens’ Security was passed. The sanctions can be suspended if a person agrees to undergo a detoxification treatment. This artificially increases the statistics for care given for cannabis-related problems as an estimated 75 percent of treatment requests are a result of sanction suspension.

 

THE BIRTH OF A MOVEMENT ASSOCIATING CANNABIS USERS

To make a stand against the prohibition of consumption in public places was one of the initial objectives of the cannabis movement, which emerged in 1993 through the Association Ramón Santos de Studios Sob reel Cannabis (ARSEC) group in Barcelona. Another objective was to put an end to the juridical insecurity regarding cultivation, finding a legal way to be self-sufficient. ARSEC sent a letter to the anti-drug public prosecutor asking whether it would be considered a crime to grow cannabis for use by a group of adult users. The reply was Series on Legislative Reform of Drug Policies that in principle this was not criminal behavior, which resulted in a cultivation experiment destined for around 100 people, that was broadcast by the media. The crop was confiscated, but the provincial court acquitted those involved, although the case was later taken to the Supreme Court.

Meanwhile, other groups emerged that followed in the footsteps of ARSEC. The first to do so was the Kalamudia association from Bilbao, which produced a crop of around 600 plants for the use of 200 people, including some members of the regional parliament and a few town council or from various political parties, as well as artists, trade unionists, doctors, etc. The legal case was closed soon after being opened and the crop harvested without legal obstacles.

However the ARSEC case, which was pending conclusion for two years, was settled a few days later with a minimum prison sentence (which was suspended) and fines against the directors of the association. The Supreme Court stated, that although it was clear that ARSEC did not intend to traffic drugs, the cultivation of cannabis was dangerous per se and therefore should be punished. As a result, in principle they closed the doors to drug cultivation associations.

Nevertheless, in 1999, the Kalamudia association decided to challenge the law and repeat their public and collective marijuana plantation. The public prosecutor did not intervene. The crop was once again harvested without incident and in the presence of television cameras. In 2000 the third crop was produced, and again provoked no legal action. In the face of this lack of opposition the associations decided to seek some institutional and legal stability for their cultivations.

 

THE CANNABIS CLUB MODEL IS BORN

Meanwhile, the regional government of Andalusia commissioned a juridical report on the possibility of setting up establishments where people would be able to obtain cannabis whilst respecting the legal framework. The authors Juan Muñoz and Susana Soto, after fully analyzing the jurisprudence on cannabis and other illegal substances, reached the conclusion that these establishments should be “Centre that are not open to an indiscriminate public, but where access is restricted to hashish or marijuana smokers.

As a method of controlling access, people would have tube regular users. These would be places of private consumption among regular users, where they would be able to obtain and consume quantities that would not exceed the fixed consumption limit. “The report was never officially published, although it did appear in a prestigious legal journal, and even though it was a simple, on-binding, technical report, several institutions seem to have taken its conclusions into account. Little by little, associations began to formalize their set-up: from being registered as “cannabis research “associations they went on to become “cannabis users” associations and included the creation of private spaces for consumption and social cultivation in their statutes. The pioneer was the Barcelona Cat adores Cannabis Club (CCCB), in 2001.

Meanwhile the Supreme Court, in decisions passed between October 1, 2001, and July 9,2003, contradicted the initial ARSEC  judgment, establishing that possession of cannabis, including large quantities, is not crime if there is no clear intention of trafficking. In subsequent years, the report by Munoz and Soto and the above Supreme Court decisions would serve as a basis for various judicial resolutions that considered the cultivation of various cannabis clubs legal. Among these cases, the most talked about was the one that took place in 2005 against the Panache association. Four members of the group were detained and the association’s cultivation confiscated. This led to a4 | Series on Legislative Ref or of Drug Policies parliamentary question to the European Commission from the Italian Euro MP Giusto Catania. In it she asked why it is that in a country in which consumption is decriminalized and people can legally join a club of users, it is also possible to prosecute one of these clubs through the criminal justice system for carrying out preparatory activities to consumption.

The commission replied two months later, through the European commissioner for Justice Franco Fretting, saying that the European Union is not responsible for the regulation of conduct related to possession and consumption. In accordance with a Framework Decision by the European Union,  “the member States guarantee that cultivation of cannabis plants, when carried out illegally, is a punishable offence.” But this obligation disappears in the case of cultivation for personal consumption because, in the words of commissioner Fretting, “article 2.2 excludes cultivation of cannabis for personal consumption from the Council’s Framework Decision as it is defined by national legislation. “Almost immediately the case was closed and, in an unprecedented decision, it was decided that the marijuana confiscated(over 17 kg.) be returned to the members of Panache, an event that was much publicized and was probably the trigger of genuine boom of new associations trying to launch their own cannabis production.

 

HOW A CANNABIS CLUB WORKS

Because of the lack of clear regulation, associations have had to improvise and invent solutions in order to standardize their activities. The main pioneering groups came together in 2003 as the Federation of Cannabis Clubs (FAC), which initially included 21 clubs. The federation has been developing a legal and management model over recent years known as Cannabis Social Clubs, to try to find a way of fitting the growing number of clubs and their increasing complexity, into current legislation. There are currently an indeterminate number of clubs in Spain, that from available statistics could be anywhere between 100 and 300.

These are spread out unevenly throughout various regions, with the highest concentration in Catalonia and the Basque country where there is a higher level of social tolerance. In fact, the demand for information on creating new clubs has been so great that the FAC has had to draw up a guide on how to create a cannabis social club.

The typical evolution of a cannabis social club starts with it being founded and recorded in the registry of associations. Next, the members who wish to approve collective agreement on cultivation do soothed club rents or buys land, buildings, equipment and all that is necessary to cultivate and later distribute the harvest. The calculation of how much is cultivated is done on the basis of a prediction of each member’s consumption.

The care of the plants, according to the formula chosen in each club, is carried out by voluntary members, staff hired directly by the club, or professional cultivators (who are usually also members) who are paid for the land rental and the hours worked after producing the relevant invoices. The accounts are kept very thoroughly in case there is an investigation. Distribution is done on the club’s premises, which are normally in commercial buildings or offices and only club members and accompanying adults can attend. It is distributed in small quantities, for more or less immediate consumption.

Most CSC also have a consumption area for members, although they often allow small quantities to be taken away for consumption over the following few days, so members don’t have to attend on a daily basis. There is a maximum consumption limit, which is usually 2 or 3 gr/day, and this can only be exceeded in the case of users with medical needs that require higher doses.

The clubs produce and distribute mainly marijuana, from either exterior or interior cultivation, although they sometimes make hashish and increasingly more often, other products such as alcohol, cream, oils, tinctures, sweets, etc. so as to promote alternative consumption methods to smoking. Some clubs also loan out vaporizers. Those who participate in cultivation pay membership fees proportionate to their consumption, used to cover production costs, storage and management. Being nonprofit organisations, any economic profit is reinvested in the association. A part of the profit is used for various social activities such as courses and conferences, legal and medical consultancy, protests and political lobbying activities to promote normalization of cannabis use, or to support the Cannabis Cup (a celebration of marijuana which awards prizes for the highest quality marijuana production by CSCs).Administration is democratic and uses various models, horizontal or hierarchical, but the ultimate decision making body is always the general assembly of members.

To join a club, one must be invited by one or two of the members, who can also guarantee that the person wishing to join really is a cannabis consumer.  Despite their existence in a legal grey area, the administrative situation of many clubs is almost normalized. Quite a few of them have contract staff who are in the social security system and pay various rates and taxes, such as income tax, corporation tax, and in some places even VAT, which taxes 18 percent on the distribution of CSC products.

However, there are still many unresolved questions and the clubs are permanently at risk from various legal problems, especially during cultivation and transportation. In order to avoid this situation, proposals have been drawn up within the FAC to regulate the activities of the CSC so that these may be overseen by public institutions and therefore avoid police and judicial interventions which can cause unnecessary damage. Several associations from the Basque country recently presented proposal in parliament- still awaiting vote – to create a specific registry for associations of this kind, in which their economic activity is overseen in order to check that they really are non-profit organizations.

This would be combined with a police and administrative protocol that would include a list of places of cultivation, inspections of these places, taxation of production and supervised transportation. All this would bring an end to the current juridical insecurity and without a need to reform the criminal code or withdraw from international treaties. Cannabis social clubs provide a viable alternative to the dominant illegal market, one which is compatible with upholding treaties on drugs that currently appear untouchable. This model makes it difficult for minors to access the substance, limits so-called “psychoactive tourism” and weakens the black market by removing potential clients from it. What is more, members of a CSC are able to control the origin, quality and composition of what they are consuming, whilst generating legal economic activity and tax collection.

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