New Era Following the Supreme Court's judgements against cannabis clubs in 2015, ordinary courts have started interpreting them. Spain's major clubs, above all in Barcelona, appear to have their days numbered. However, increasingly more judges understand that small clubs fit in with the Law. A new era is dawning.
In Spain, two rulings to the same effect by the Supreme Court establish jurisprudence and this doctrine must be applied by all of the lower courts. In the case of cannabis clubs, 2015 came to an end not with two, but three Supreme Court convictions. 2016 has been the year when these rulings have been interpreted and clarified, and despite the clubs with hundreds or thousands of partners having no place within the new legal framework, everything points to this associative phenomenon remaining in place for the time being.
The first major strike against cannabis clubs in Spain was made by the Supreme Court on 7 September 2015. Members of the management board of Bilbao’s Ebers association were sentenced to eight months in prison – which they do not need to serve since it is their first offence – together with fines of €5,000 each. Two more collaborating partners were sentenced to three months in prison each. The court took into account the ambiguity of Spanish law on cannabis and understood the defendants may have had doubts regarding the legality of what they were doing, which prevented the sentence being greater and spared them from prison. The first pronouncement was that “cultivation and organised, institutionalised distribution of cannabis, on a long-term basis, among a collective consisting of 290 persons constituting an Association open to new members” is a drug-trafficking crime.
The second strike, which established case law, arrived in December, when the board of Barcelona’s Three Monkeys association was handed the same sentence of eight months in prison, although without fines, after not having clearly established the quantity of cannabis. And before the year came to an end, the heftiest strike fell: the Pannagh judgement, in which members of the board, including myself, were sentenced to one year and eight months in prison – which we also do not have to serve – and each to a fine of €250,000. At present, the three judgements are being appealed before the Constitutional Court, with the first two – those of Ebers and Three Monkeys – having been declared admissible. Consequently, the Constitutional Court has already decided to pass judgement on the question of clubs, although we will most likely have to wait several more years before its decision is announced.
With these rulings, the Supreme Court made its desire to end Spain’s Cannabis Social Clubs phenomenon clear. Although in the Ebers case five of the 15 members of the Chamber cast private votes, supporting acquittal instead of conviction, they made it clear while doing so that, in any event, clubs such as Ebers should not be legal. The message, in particular following the Pannagh case, was clear: after the three rulings, it is no longer possible to allege a legal vacuum, meaning the next people who dare to organise a cannabis club of this size and scope will go to prison and pay astronomical fines.
Adapting to hard times
The outcome of these rulings was cataclysmic. Certain associations – frightened by the new situation – closed their doors, in some cases for good, while others were investigated by the police, which resulted in arrests, warnings and the closure of venues.
However, not all associations opted to close or were investigated. Many clubs have started to discuss how to adapt to the new reality. They consulted with their lawyers and held members’ meetings to explore how to move forward. At the end of the day, the Supreme Court’s rulings rejected the possibility of clubs with hundreds of members, although at the same time, they accepted that so-called “shared cultivation” might not be a criminal matter; something which had not been explicitly recognised before.
Certain associations opted to split up into smaller groups and operate even more horizontally, meaning that the club’s cultivation is truly shared. Others updated their member lists, keeping only the real ones. Up until then, the trend was to have many members to justify cultivation; now, it’s about having few members and keeping them well informed of what’s happening, in order to avoid a criminal conviction insofar as is possible. Another regular measure has been to close the membership quota and not allow new members unless somebody drops out. Shifts involving all of the members have also been established so that the cultivation process is taken care of and to prevent certain members from being deemed drug dealers supplying to the others.
Nevertheless, not all of the associations have chosen this route. There are quite a few people, such as the most of the members of the CATFAC federation (Catalan section of the Cannabis Association Federation), who are resisting the shift towards adaptation and openly calling for some rulings they consider unjust to be disobeyed. For these associations, their Codes of Good Practice, accepted by institutions in certain cases, continue to be a valid reference. The debate is still open and the FAC is to hold a general assembly in January to decide on the strategy to follow.
The Supreme Court no longer wants to convict
At the same time as associations were attempting to adapt to the new reality, the Supreme Court continued to pass sentences concerning cannabis clubs. The most striking thing is that following the harsh verdict sentence against Pannagh, no one else has again been convicted for being in charge of a club. It is as if the warning shot had already been fired and that no more blood needed to be shed. The ’mistake of law’ argument – in other words, the possibility that the defendants were unaware they were committing a crime due to the legal ambiguity – was used to achieve an acquittal, as in the case of the La María de Gracia club, or to return the case to the Provincial Court and have a new judgement passed, as happened with the La Línea Verde.
The judgement on the La María de Gracia club was passed by the Chamber of the Supreme Court, which mostly consisted of magistrates who voted against the Ebers conviction. The division among the judges thus appears to be clear. In fact, attention has been drawn to the fact that in certain phrases of the last few judgements, there are statements that appear to be directed at supporting a possible appeal before the Constitutional Court. It is as if certain Supreme Court judges were unclear about things and wanted someone higher up to clarify them.
Small is beautiful (and legal)
While the Supreme Court continued to pass new judgements on cannabis clubs, the first three rulings (i.e. on Ebers, Three Monkeys and Pannagh) were already being applied by the different lower-ranking courts. The result of their application clearly shows two distinct tendencies: harsh punishments for major clubs used as a front and a withdrawal of the accusation in the case of smaller associations.
Among the major clubs, the highest-profile case has been that of La Mesa Barcelona. The police seized around 2,400 cannabis plants and investigated the association. The founders, two Dutch citizens, were accused of drug trafficking and unlawful association. No members testified to exonerate the managers and that fact, together with other circumstances, led the Court of Barcelona to sentence them to five years in prison each (in this case, they will have to serve that time because the sentence is more than two years) for using the association, which lacked “regular associative activity,” as a “mere smokescreen” for whitewashing trafficking activities. In other words, having a registered association is not enough; you also have to demonstrate that it operates as such.
On the extreme opposite side, we have associations that, after having been investigated, are able to continue their activities. In the Basque Country, the historic Atxurra succeeded in having a case against it dropped upon demonstrating they were a true association, the small number of members and the proportion between the number of members and the plants cultivated for them. There was another similar case in Galicia, when a case brought against a 36-member association was closed upon the understanding that it fits within the Supreme Court’s case law. There have also been similar cases in Valencia and the Balearics.
Another interesting case is that of La Cannameña, in Extremadura, which was investigated when it presented its articles of association for registration. La Cannameña showed that its articles of association openly mention cultivating cannabis for it members. Following the investigation by the police and the public prosecutor, they were allowed to register and operate in accordance with those same articles of association, including where they discuss cultivation. In other words, the public prosecutor deems cultivating cannabis within the framework of an association of a few dozen members legal and authorises them to continue their activities, thus setting a historic precedent.
It could be said that while the Supreme Court has closed a major door, intentionally or not it has, in turn, opened a smaller one. The large clubs with thousands of members and a commercial structure seem condemned to disappear, and while there are still quite a few open, it appears to be only a matter of time before they close their doors as the police investigate.
On the other hand, we have the small clubs that are horizontal and participative in nature – i.e. those closest to the original cannabis club idea. These clubs are going to be able to continue, although in the short term it is most likely some will still be harassed and pressurised by the police. Meanwhile, if the line of interpretation opened with Atxurra or La Cannameña becomes common practice, small cultivation collectives have a promising future. If they succeed in having their right to grow recognised, they will be safeguarded against possible future convictions and it will be possible to continue opening cannabis clubs in Spain. While they won’t be as large or as chic as the commercial clubs that burgeoned between 2010 and 2015, they will allow thousands of people to supply themselves with cannabis outside of the black market. It may just indeed be true that when one door closes, another opens. Other clubs will have to slim down substantially to be able to pass through that newly opened door, but this is good news in a country where the CSC model is hopelessly bloated.