Cannabis and the law: Ignorantia juris non excusat

There is a legal principle which says that ignorance of the law is no excuse. Translated from Latin, we might render it as: ‘not knowing what the law is does not exempt you from complying with it’. Seen in a positive light, this tells us that information is essential to make the right decisions.

It is crucial to unpack what the situation is today and the legal consequences related to cannabis to learn the implications of actions and the risks they may lead to. This is by no means a minor issue; for example, in Spain in 2018 there were 21,664 cannabis-related arrests and 381,100 administrative penalties were imposed (excluding the ones handed out by local and regional police forces); in other words, every 24 hours around 60 people are arrested and subsequently tried. Also, 870 times a day – once every two minutes – a person is fined at least €600.

In Spain there are several laws in play when it comes to cannabis cultivation, possession and use. This post summarises the main points of the Organic Law on the Protection of the Citizens’ Security, the Penal Code and the Supreme Court’s case law on shared use. Other legal regulations are left out, such as the Narcotics Regulation Act enacted in 1967 (at the end of Franco’s dictatorship). This Act and an earlier 1963 Order on the cultivation of medicinal plants related to narcotic drugs are the ones which today regulate the authorisations awarded by the Spanish Agency of Medicines and Medical Devices for the production of cannabis for medical and scientific purposes.

At the junction of these laws lies a social situation that persistently – and globally – calls for a new social and legal framework. When it comes to acting responsibly, the more objective information we have, the better we’ll be able to do the right thing.

In most parts of the world, policies are based on criminal and/or administrative prosecution. This has a shared source in international drug control treaties and conventions. Over the last few years there has been a paradigm shift in the way society deals with cannabis, yet legal changes are not moving forward in the same way everywhere. Indeed, while in Uruguay and Canada the sale of cannabis is legal for adults, there are some places where the death penalty still awaits anyone who traffics in cannabis.

International situation

The World Drug Report 2019 says that the most widely used drug worldwide continues to be cannabis, with an estimated 188 million people having used the drug in the previous year.

In 1961, cannabis was added to the United Nations (UN) list of banned substances with a small twist. Unlike other substances, it was controlled without the World Health Organisation (WHO) having scientifically assessed its potential risks and harms. These WHO reports guide the UN in classifying substances into one of the four existing schedules. Cannabis was classified twice: in Schedule I, as a substance with dependence-producing properties and a serious risk of abuse, and in Schedule IV, which includes the most dangerous substances, such as heroin, because of their associated risks of abuse, particularly harmful characteristics and lack of medical or therapeutic value. Finally, more than 50 years after denying any medical usefulness of cannabis, the UN is beginning to change its mind albeit unobtrusively. In the meantime, Uruguay and Canada cut to the chase and in defiance of a narrow reading of the UN control treaties embarked on cannabis legalisation programmes. More than 30 states in the United States have also started them, although it is still banned by the federal government.

In January 2019, the WHO released the conclusions of its scientific review (which it had been unable to bring out five decades earlier) and recommended that cannabis and cannabis resin should be removed from Schedule IV, thereby fully acknowledging the medical applications of cannabis and cannabinoids. In its view, governments would henceforth be required to ensure appropriate availability of cannabis to alleviate the pain and suffering of patients in their countries. However, the UN still has to vote on whether or not to follow the WHO’s lead. The long-awaited decision is expected to be taken by the end of 2020. For now, it’s business as usual.

If you’d like to learn more about the details of cannabis bans, we suggest you read the Amsterdam-based Transnational Institute’s outstanding The Rise and Decline of Cannabis Prohibition report.

Situation in Spain

The National Drug Plan reports that in 2018 about 2.8 million people had used cannabis once a month and about 650,000 people on a daily basis.

Bear in mind that Spanish legislation is not one of the toughest in Europe; for example, here the consumption of illegal substances is not a crime while it is in many other countries such as France, Greece, Hungary, Finland, Turkey and Sweden. In Cyprus, for instance, it can lead to life imprisonment. So if you have to travel, it’s a good idea to find out about the laws of the countries you are going to and through. However, Spain is the country with the highest number of use and possession offences in the European Union. Despite this, Spain is the fourth country in the European Union in terms of prevalence of cannabis use.

There are at least four applicable legal standards here:

The Law on the Protection of the Citizens’ Security (LOPSC), known as the ‘Gag Law’, which punishes the following cases as serious offences:

  • Use and possession of cannabis in public spaces, squares, streets, establishments, premises or transport.
  • Leaving user material in public places (cigarette papers, grinders, pipes, etc.).
  • Allowing other people to use or deal in public places or nightlife venues.
  • Illegal planting and growing of toxic drugs, narcotics or psychotropic substances in places visible to the public when they do not constitute a criminal offence.

The minimum penalty is a €601 to €10,400 fine, the mid-range penalty is a €10,401 to €20,200 fine, and the maximum penalty is a €20,201 to €30,000 fine. The size of the fine can be increased from €600 or more to €10,401 if there are any aggravating circumstances, including repeat offences. There is a two-year statute of limitations, which increases the possibilities of reoffending and generates a lot of uncertainty and potentially risky situations.

Only under-18s ─ and only in some towns ─ are eligible for alternatives to paying the fine for drug use or possession on public highways.

In Catalonia in 2018, the Catalan Regional Police (Mossos d’Esquadra) handed out around 25,000 drug-related penalties; based on the data available for Spain, it can be inferred that around 22,000 were directly related to cannabis, i.e. around 60 per day (one every 30 minutes).

We do not have any figures on the number of penalties handed out by local police forces in Catalonia.

An appeal against the penalties can be lodged with the Spanish Government Office (Delegació del Govern). Grounds may include medical reasons, overriding a person’s right to privacy or illegal searches. It’s best to seek legal advice. You should also be aware that once you’ve received notification of the fine at your home address, if you pay it within the following fortnight it’s reduced by 50%.

Self-cultivation is growing plants for personal use on your own property (flat, house or land). At present there is no stipulation anywhere about the number of plants someone can have at home for personal use and this leads to a lot of confusion. Self-cultivation is not legalised, but it is decriminalised. This means that although the law does not explicitly allow it, it is clear that in practice there is a broad affirmative interpretation about the possibility of having a crop for personal use on private property. If it can be seen from a public area, the police can fine the grower.

The Organic Law on the Criminal Code, which states in section 368:

‘Those who carry out acts of cultivation, processing or trafficking, or otherwise promote, encourage or facilitate the unlawful consumption of toxic drugs, narcotics or psychotropic substances, or who possess them for those purposes, shall be punished with a prison sentence of three to nine years and a fine of one to three times the value of the drug the offence concerns if they are substances or products that cause serious damage to health, and a prison sentence of one to three years and a fine of one to two times the value of the drug in the remaining cases’.

First of all, it is worth noting what many experts have been saying for years. It is a very broad and ambiguous criminal offence which can be summarised as follows: any giving, manufacturing, encouragement of use or sale, regardless of the quantity, is an offence in itself and grounds for criminal prosecution.

The Supreme Court, however, considers cannabis to be a ‘drug that does not cause serious damage to health’ and so jail terms are up to 3 years at the most.

Possession is also an offence when the quantities involved are greater than deemed for personal use, roughly 25 grams of hashish and 100 grams of marijuana. Buying cannabis for personal use is not an offence; it is the seller who perpetrates the crime.

In the case of cannabis cultivation, the police always intervene and seize the plantation, arrest the perpetrator(s) and leave it to a judge to decide whether it is a crime against public health and deserves a sentence or not. In terms of court rulings in relation to such offences, it is interesting to note that approximately 86% of drug-related judgements (in general) result in a conviction. However, reviewing the sentences also shows some judges have considered two plants to be enough to convict, while others have accepted up to 100 plants for personal use. This is one of the greatest sources of legal uncertainty in current legislation.

The Spanish legal framework specifies that law enforcement agencies cannot enter private property if the plants are not visible from a public area unless a) the owner allows the police in, b) the police have a warrant, or c) the police are certain that a crime is being committed at the time.

Supreme Court case law on shared use

This case law builds on the notion which argues that group drug use is not a crime even when it involves reciprocal assistance or provision among the members of the group, which always has to be small. Until 2015, the Supreme Court considered the following scenarios:

  • They must be private venues for people over 18 years of age who are used to using cannabis and this consumption must not be shared with third parties.
  • There may not be any profit motive and cultivation must be planned based on the expected joint use of the members.
  • The cannabis must be dispensed in small quantities which can be seen as for immediate use.
  • There must be a joint cultivation agreement and a forecast of the amount of marijuana consumed by each member per year which has a ceiling.

These are the foundations of cannabis associations. For 20 years, cannabis social clubs have been constrained by the legal vulnerability which marked the boundaries of the shared use case law. Since 2015, the Supreme Court has heard cases against three associations, and the outcome has only added to the complexity of the situation. Recently, association leaders have been sentenced to 5 or more years’ imprisonment and astronomical fines. This is because they were also charged with other offences, such as membership of an organised criminal gang and money laundering. Until such time as regulation is forthcoming, this uncertainty will remain the rule. In the meantime, the cannabis social club model is in danger of being wiped out.

Road Traffic Act

Cannabis use and driving can increase some risks and lead to a €1,000 fine and the loss of six points from the driver’s licence. There is a lot of controversy about drug testing and more research is needed to understand the relationship between drug use and driving impairment as the evidence is contradictory.

You will find more information on this issue in the post Cannabis and driving: controversy rages on.