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.
False News
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.