THE LEGALITY OF CANNABIS CLUBS. THE SUPREME COURT SENTENCE OF SEPTEMBER 7, 2015.
On 5 July 2012, José Luis Diez Ripollés and Juan Muñoz Sánchez, Professors of Criminal Law at the University of Malaga, issued, at the request of the Federation of Cannabis Associations of the Basque Country, an Opinion on the legality of the constitution and the operation of the Social Cannabis Clubs; their conclusions have given leagl clothing over the years to hundreds of user associations that have based their statutes on the interpretation that is defended there from the so-called doctrine of shared consumption, however the recent ruling of the Supreme Court 484 of 07 September 2015 states that «this doctrine has been stretched to break its seams».
THE FACTS TESTED
The «Association of Studies and Users of Hemp EBERS» was legally established in 2010 in accordance with the law of the Basque Parliament of Associations of 2007 and was regularly registered in the General Register of Associations of the Basque Country, in its Statutes expressly stated as its purpose the launch of «a shared use project, having as its maximum always comply with the advice established by the Spanish Supreme Court, in its recent jurisprudence line that welcomes the impunity of consumption shared by already users.»
Each associate signed a «Consumption Forecast Agreement» stating the amount of consumption planned for a period of six months, with a maximum of two grams per day, and a «Crop Agreement» assuming as a collective the crop that the association entrusted to a Gardener.
None of its founders or members of the Board of Directors had a criminal record and the association grouped 290 partners when, in 2011, their registered office was searched by the Municipal Police, which found 4,750 grams of marijuana being arrested and charged with (drug trafficking) an offence against public health, integration into a criminal group or alternatively of unlawful association three members of the Board of Directors and two partners who manipulated the substance at the time of registration.
They were all acquitttttous by the Provincial Court of Bilbao but the Public Prosecutor’s Office, following the Instruction of 2/2013 of the State Attorney General’s Office on some issues relating to associations promoting cannabis use filed recourse before the Supreme Court.
Expressly the Supreme Court admits that neither the distribution to third parties, nor the profit motive of the association, but expressly, also, says that none of that data is essential and what the Supreme Court really judges is if (it literally says the judgment) «the organization of a methodical, institutionalized structure, with a vocation of permanence and open to the successive and staggered integration of a large number of people» fits into the doctrine of shared consumption.
It is therefore a trial of the associative system of distribution of cannabis, to the model of the Social Cannabis Club.
It is true that the Judgment refers, in the appeal, to the magnitude of the substance handled, in relation to a figure greater than 10 tonnes, but this figure results only from the manifestations of the Public Prosecutor’s Office and not from the Facts tested. If such a statement of amount entails the introduction of new facts into the proceedings (something that is not allowed on appeal) it will be decided, where appropriate, by the Constitutional Court or the European Court of Human Rights.
In any case, in substantiating the conviction the Supreme takes into account only the amount of 4750 grams intervened and imposes on the accused prison sentences of eight months (on the members of the Board of Directors) and three months (to the other two partners) with the ancillary of dishabilitac right to vote and acquits all defendants of the crimes of illicit association and criminal group.
THE BASICS OF LAW
It is indifferent that there is profit in the distribution.-
The Judgment, after setting out the thesis of the Provincial Hearing that acquitted the defendants and that of the Prosecutor’s Office that resorted to the Supreme Court, rules out that the profit motive is a relevant element in defining drug trafficking and states that it does not appear that the the presence of a paraens of personal enrichment is significant in a risky crime that protects public health.
The Supreme Court considers that all drug use is illegal.-
Article 368 of the Penal Code criminalizes drug trafficking as an abstract crime of danger and sanctions all actions aimed at promoting, promoting or facilitating «illegal consumption» and the Supreme Court considers that «any use or intake of the drug by various organic pathways other than those expressly authorized for therapeutic or health-positive purposes» is illegal consumption (i.e. not in accordance with legality even if, as such, it is not punishable).
However, this interpretation is not peaceful, there is no rule that generally prohibits drug use or declares it illegal and the very configuration of drug trafficking as an abstract danger crime leads to the conclusion that where there is no such danger, the consumption will not be illegal for criminal purposes. According to this opinion (to which the aforementioned Opinion is received) and taking into account the Citizens’ Security Act and the Narcotics Act, only consumption in public places will be illegal (but never criminal) those made in violation of an authorisation granted and all those in the context of an indiscriminate drug distribution with a risk to public health.
And the truth is that the judgment we are commenting on seems to mitigate that claim (that all consumption is illegal) when it concludes by saying that the cultivation acts of the same are punishable only in that they tend to facilitate the promotion, favouration or facilitation consumption by third parties, so that the consumption of the «self-cultivated» would not be illegal.
The limits of shared consumption.
The doctrine of shared consumption is a construction of the case-law consisting in considering non-criminal, not only individual consumption, but also that practiced as a group even if it involves acts of mutual relief or facilitation among the members of the collective that must always be reduced.
The criterion by which the Supreme Court outlines this doctrine is clearly restrictive and characterizes it with four notes:
1o) That they are habitual consumers or addicts who are grouped together to consume the substance.
(2) Consumption of the substance must be carried out «in a closed place» and the diffusion of the substance should not be extended to those who are not part of the initially grouped ones.
(3) The act shall be limited to a small group of identifiable and determined addicts.
4o)Applies only to small quantities, limited to daily consumption without the possibility of mass storage.
And here the entire dynamite judgment is the scheme of the Social Cannabis Club because it literally states that the doctrine of shared consumption neither in its merits nor in its detailed requirements can serve as a cover for associative initiatives of distribution of cannabis.»
It adds the judgment which is criminal «the conduct specifically in organizing a system of cultivation, collection, or acquisition of marijuana for the purpose of distributing or delivering it to third parties, even if the purchasers are required to have incorporated prior to a list, a club, or a similar association or group.»
The Supreme Court declares itself outside the debate on legalization and considers that it is not its role to regulate this issue.-
The Court claims to be aware of the social and political debate on the legalization of cannabis but states that «it is not the role of a Court to interfere in that debate(…) and even less is its role in making decisions that are in the hands of other state powers.»
Here is certainly the key to the issue: courts should not take on a task that falls to politicians and the Legislative Power and only an overdose of naivety can lead to the belief in legalization through judicial decisions; this way could lead to a situation of mere tolerance (such as the one that has been there so far) but not the establishment of a legal framework in which users can exercise their rights and claim their protection.
At the same time, the Supreme Court recognizes that the doctrine of shared consumption may provide for the cultivation of a collective for the exclusive supply of its members, but expressly chooses not to determine the requirements that would make such an action permissible because considers that it goes beyond its role.
Against this position, one of the judges expresses a particular vote on the judgment that this waiver to define «more or less reasonable strict requirements» constitutes an insufficient and insecure response that does not clearly resolve the problem, and on the contrary perpetuates it; it is more with this silence the Supreme Court is not attending to the «effective fulfilment of –its- essential function as a Chamber of Marriage to which it would be due, after a long period of indefinition and legal uncertainty in this matter, to resolve precisely the conflict by establishing clear limits on the typicality of the assumptions of cannabis user groups for a crop dedicated exclusively to self-consumption.» That would be to understand, the Legal Order as an open texture, in the words of Herbert Hart, and the court’s interpreting function in an organic way, suited to social reality and not merely mechanical and literalist.
The Supreme Court has opted for a restrictive interpretation of the shared consumption doctrine in which most of the current associations will hardly have accommodated.
First and foremost the number of members of the group has to be reduced and closed to third parties, this is in a literal sense, limited (which implies the impossibility of admitting new members once constituted) and small (legal concept indeterminate but in which they do not have of course, all those associations that number their members in the hundreds or thousands).
The judgment expressly states the associative initiatives for the distribution of cannabis outside the scope of the doctrine of shared consumption and insists that it is not permissible for a small core of people to organize and direct the structure, supply, cultivation and distribution, control, cultivation and that a large and indiscriminate group of users is limited to obtaining the substance upon payment of its quota and its cost; that is to facilitate the consumption of third parties because there are distributors – even if they are also consumers – versus simple recipient consumers.
It is therefore not only a quantitative but also qualitative issue: a small number of people with a non-hierarchical and equal structure in terms of involvement in organizing, cultivation and distribution; that is the most that seems to have a place in this conception of the doctrine of shared consumption and, from a legal point of view, is somewhat closer to a community of goods than to an association.
None of this seems to fit the model that inspires hundreds of cannabis associations, so it must be acknowledged that the sentence is closer to the wording of the norm (which is otherwise omni-comprehensive of any consumer-led conduct) than to the social reality.
The Supreme Court may (and should) refuse to interfere in the debate on the legalization of drugs but with this ruling has gone on to interfere in the daily lives of thousands of members of those legally constituted clubs who, under the criteria it establishes, will not have option other than to go to the black market.
At the same time, associations should be aware that the protection scheme (the legality coverage of cannabis clubs) offered by the Malaga Opinion does not support many of the current behaviors that have ended up breaking their «seams».