- The ruling made by the Supreme Court that sentenced several members of the Ebers cannabis association for the crime of illegal drug growing is accompanied by a series of criteria that could be taken into account in order to determine if these organisations are acting correctly.
- However, although the criteria are very useful, they are not a determining factor, and will depend on each specific case.
Over the last few days, the Basque Parliament has been drafting the definitive text of its Addictions Law, and one of the measures involves regulating cannabis clubs. The State's public prosecutor has already announced that despite warnings from the central Government which deems it unconstitutional, this law must respect the new "limits established by the Supreme Court" in the recent Ebers Ruling.
In that ruling the high court outlined strict requirements that must govern shared consumption in cannabis clubs. They must also establish jurisprudence with regard to how far these associations can go in view of the Criminal Code. This is something that clashes head on with the more liberal regulations being sought with the new Addictions Law in the Basque country. Now, legislators must split hairs because the activity of these clubs has been placed right on the boundary limits of the Criminal Code.
In July, magistrates from the Criminal Chamber of the Supreme Court overturned a ruling of acquittal made by the Provincial Court of Vizcaya and sentenced five members of the Ebers Association of Hemp Studies and Users, in Bilbao. They were found guilty for a crime against public health "for the illegal growing of toxic drugs". The decision is partly motivated by the fact that there is no clear regulation about what members of these types of clubs can and cannot do.
Now, the High Court has resolved the case and has published a detailed ruling. The president, secretary and treasurer of the association have all received jail sentences of 8 months and fines of €5,000 each. The two collaborators who occasionally packaged the cannabis that was divided among members received 3 month sentences.
The Supreme Court has stipulated that, from a criminal point of view, it is not permissible that the production and consumption of marijuana in a social club is placed into the hands of an "indeterminate number of people", that is to say, members. Likewise, nor is it permissible for the association, comprised of 290 people, to be open to new people joining indiscriminately and on a constant basis. The Supreme Court believes that the association's activity goes beyond the limits outlined in article 368 of the Criminal Code that prohibits the growing of certain substances, as well as their consumption.
On the other hand, according to the ruling, the amount of marijuana assigned to each member (and included in contracts for the forecasted amount of consumption) and managed and distributed by the club, "was a total of 10.4 tonnes of the product each six months". This quantity deviates from what is considered to be shared personal consumption. This leads to the belief that the cannabis could have been provided to third parties, something that is not permitted, although the Supreme Court admits that there has been no proof of this.
Also, the court is aware that the club's management board cannot be held responsible for whether or not their members give away or sell the product (betraying their association's obligations) to a third party that is not a regular user. However, the management is accused of being a source of "uncontrollable and real risks" that are present when large quantities of the substance are present. The Court believes that this matter "stretches the doctrine of shared consumption to breaking point".
Faced with this case, the Platform for Responsible Regulation wanted to complain about the "political and moralising use" of the legal system and demands a political response that corresponds in an effective way to the country's social reality.
It maintains that, faced with prohibition, many people have spent years empowering themselves in order to transform the system, given that consumers live in a permanent state of legal insecurity. "People that grow their own, people that supply themselves collectively, people that use cannabis as a palliative measure, we need a response and we are completely within our rights to demand it", adds the announcement.
Also, remember that cannabis users do not want to seek recourse to the illegal market or continue to pay police and legal costs; therefore they need integral regulation that allows for tolerance through respect and dialogue.
Criteria that a Cannabis Social Club must comply with in order not to be deemed illegal
As we can see, the Supreme Court has opted for a very restrictive interpretation of the rules regarding shared consumption, which hinders the activity of clubs that currently exist.
Now, the court has outlined parameters in order to determine if the activity of a cannabis association is criminal or not. These rules will be very useful for provincial courts, which usually have widely varying opinions when it comes to dealing with these matters. However, in the end, everything will depend on the analysis of each specific case.
1- On one hand, the association must be comprised only of habitual cannabis users, who can show this, and it cannot be open to an indiscriminate number of members. This limitation is aimed at preventing third parties that have nothing to do with the club's principles from using it illegally.
2- Also, the consumption must take place in a closed-off area in order to prevent it from being promoted in public and to prevent it from reaching those who are not associated members. In fact, meetings must take place between small numbers of users in order for them to be considered a "private affair that is not of a public nature".
3- Likewise, people associated with the association must provide identification to prove that they really are habitual cannabis users.
4- On the other hand, consumption must be immediate, in order to ensure that the product does not leave the premises and to stop it from falling into the hands of third parties that should not have access to it.
5- Additionally, the quantity of cannabis that the organisations possess must be "minimal" and suitable for consumption in a single session or meeting".
6- Associations are also urged to prevent storing large quantities of the plant as that is considered to be the "seed of danger that the legislator wants to banish" (with regard to the trafficking of drugs).
7- Lastly, it should be the management body of the association that aims to ensure that all of the above measures are fulfilled, that is to say, they should have the ability to control and fulfil all of the aforementioned requirements.
However, given that the analysis of the circumstances will depend on each case, greater precision is needed in order to know the boundaries where the activities of a cannabis club may or may not constitute a crime. Until there is complete regulation, users will remain defenceless.