a brief history of cannabis policies in spain - Journal of Drug Issues

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GAMELLA, JIMÉNEZ RODRIGO Another 1995 law made the laundering of money from drug trafficking a serious criminal offense. Domestic measures for preventing the diversion of precursors were also implemented following EU regulations. This has been especially important concerning “lab drugs” such as amphetamine, methamphetamine, and ecstasy. DAILY LEGAL PRACTICE In respect to illegal drugs, the Spanish penal code is a “blank” or open law (Herrero, 1995, 2000). That is, supplementary regulations and jurisprudence are needed to provide concrete meaning to some of its basic terms. For example, it is necessary to determine the exact substances it refers to and their risks for health or social order. 10 In the Spanish case, the distinction between more or less harmful drugs could be an empirical question to be contested in court. 11 Cannabis has been repeatedly considered a “less harmful” drug by supreme court jurisprudence, as opposed to heroin, cocaine, LSD, and, after some contention, amphetamine-type drugs, including MDA and MDMA. How the courts will determine if an amount apprehended from a suspect was intended for self-consumption or trade is still an issue, however (Herrero, 1995, p. 82). The Supreme Court established in several rulings (two similar verdicts determine jurisprudence) that any amount that “exceeds what the user consumes in three, four or five days” makes possession a crime (ruling of the Supreme Court, May 4, 1990; in Herrero, 1995, p. 83). In the case of hashish, 50 grams was established as the theoretical limit for self-consumption, 12 yet people apprehended with larger amounts have been acquitted. For instance, in November 1991, a defendant who had been arrested with 133 grams was acquitted, and in June 1993, another person who carried 98 grams was cleared. In both cases the tribunal determined that there was “no indication that the drug was for distribution” of any kind (Herrero, 2000, p. 321). Thus, beyond amounts seized, tribunals must “evaluate carefully” the circumstances of each case. For instance, they are to determine if the defendant is a known drug user, the place where the drug was found, or the form in which it was stored (in small doses, within envelopes, bags, and vials, etc.). Other relevant factors include the possession of cash that cannot be explained, the existence of accounting notes or registrations, the movement of people on the premises where the defendant had the drug, and the presence of instruments to divide and weigh the substances. Often, defendants themselves are required to provide the proof that their consumption of the drugs confiscated was for their own personal use. Participation in a drug dependency program, for example, would be considered supportive of such a claim. 638 JOURNAL OF DRUG ISSUES Downloaded from jod.sagepub.com by guest on March 15, 2015
SPANISH CANNABIS POLICIES All of these concerns are important for many users, few of whom know much about the details of law enforcement. Perhaps this explains the success of new sources of information on cannabis, such as the journal Cañamo. Writing in one of its issues, Rafael Ramos, a lawyer, gave legal counseling to aficionados: …to the question: How much cannabis can I carry without risking being accused of trafficking? The answer would be: You can carry amounts under 50 grams, better in one lump piece, showing that you are a consumer, and without other drugs or elements that could indicate that you plan to sell the drug … (2002, p. 17). AMOUNTS OF NOTORIOUS IMPORTANCE As noted above, the penal code also establishes a crucial distinction in drug trafficking crimes when they concern amounts of “notorious importance.” For more than a decade, the juridical practice established such limits as one kilo of hashish and five kilos of marijuana. 13 In October of 2001, the Supreme Court, after considering changes in dominant attitudes, established a new limit of 2.5 kilos for hashish and 10 kg for marijuana. Any person arrested with quantities larger than these risked three to four years in jail. The participation in criminal networks is considered especially grave (Herrero, 2000, p. 328), and any person found guilty in this case would get prison terms of four and a half years to six years and nine months. This is the highest penalty for cannabis trafficking in the Spanish criminal code (Herrero, 2000). In these cases, the limit has usually been established at 100 kg of hashish, but courts insist that the drug weight should not be the only factor considered, and less severe sentences have been imposed on defendants apprehended with as much as 1,550 kg of hashish. (Supreme Court ruling of October 5, 1999, quoted in Herrero, 2000, p. 328). These penalty structures demonstrate that one of the goals of the Spanish criminal code is to distinguish among possession for self-consumption, retailing, and trafficking and to punish more severely those involved in organized crime and large-scale trade. In order to make these determinations, the courts must complete an analysis of the defendant’s intentions and goals. But the difficulties in proving the accuracy of these assumptions are manifold, and, sometimes, different courts reach opposite conclusions. For example, in 1998 the Supreme Court had to rule in a case of possession of cannabis, where two lower courts had come to contradictory decisions. The case concerned a terminally ill woman charged with possession of 60 grams of hashish. The first court fined her $2,800, while the Regional Supreme Court had dismissed the case; the Supreme Court overruled the acquittal and upheld the fine (Herrero, 2000). SUMMER 2004 639 Downloaded from jod.sagepub.com by guest on March 15, 2015
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