The Constitutional Court Overturns the Sentence Against Pannagh Members

Spain Pannagh association The members of the Pannagh association, condemned by the Supreme Court, have witnessed how the Constitutional Court of Spain agrees with them and overturns their sentence. The six-year judicial process seems to be nearing its end.

After more than six years of judicial process, the Constitutional Court of Spain overturned the sentence against the Pannagh association. Now the case goes back to the Supreme Court, which will probably opt for an acquittal. However, many of the questions raised in the appeal remain unsolved, particularly what concerns the increased criminalization of the Cannabis Social Club model without clarity on the limitations of collective growing.

On April 28, the Spanish Constitutional Court (CC) overturned the 2016 sentence by the Supreme Court (SC) against four members of the Pannagh association, including myself. The CC partially upholds our appeal and considers that in the conviction there was a “violation of the right to a trial with all the guarantees and rights of defense in relation to the knowledge that defendants had or should have about the prohibited nature of their conduct”.

That is, the SC should have given us the opportunity to declare and answer the questions of accusation and defense before deciding whether we knew if what we were doing was a crime, and if we did enough to dispel all doubt, these questions were not explicitly raised during the trial.

The trial took place at the beginning of 2015 at the Provincial Court of Bizkaia, more than three years after the Municipal Police of Bilbao raided the Pannagh premises and arrested the three workers that were inside, including me. Thus began a judicial process that has not yet been closed since the overturn of the Supreme Court’s sentence means that it must now issue a new one.

The Constitutional Court Overturns the Sentence Against Pannagh Members
Part of the 2011 harvest at the beginning of the flowering stage. The police took it and we have not managed to get it back yet.

Shared consumption

At the trial, the five persons accused were acquitted of the drug trafficking and unlawful association charges laid against us due to the association’s activities related to cannabis cultivation and dispensing. The Court decided that Pannagh operated correctly, that our activities were not for profit, and that cannabis was never dispensed to non-members. According to the decision, all this respected the limits of the so-called “shared consumption”.

The Supreme Court, however, did not have the same view. Sentence 484/2017, on the Ebers association from Bilbao, established that “organized cultivation and distribution, among a group of 290 members of an association, institutionalized and with a vocation for persistence in the time of cannabis and open to new memberships, fulfills the typical demands of article 368 of the CC”, meaning that what we did and still do in many Cannabis Social Clubs in Spain is a crime. The sentence in our case was limited to repeating the same formula.

Up to that point, it was not clear what limit the activities of the CSCs could reach, and the great majority of judicial decisions were favorable to the possibility of cultivating cannabis in a closed circuit within the framework of an association.

In Pannagh we were the protagonists of one of the most famous cases when in 2006 the Provincial Court filed an open case against us and gave us back more than 17 kg of marijuana, an unprecedented event that caused a spectacular boom of cannabis clubs. The subsequent story is known: hundreds of associations opened their doors and several autonomous parliaments initiated processes to regulate cannabis associations and, in some cases, cannabis home growing.

The Constitutional Court Overturns the Sentence Against Pannagh Members
The 2005 Pannagh’s harvest, on the way to curing. It would be seized days after.

Spain Is Discouraging Cannabis Clubs

The Popular Party Government, alarmed by the situation, decided to take action on the matter. Since the problem seemed to be that the lower courts were tolerant of the associations, the government found a way to get these cases to the Supreme Court, where they undoubtedly hoped to find supporters of their repressive policies, which ended up being the case.

The crux of the problem is that in the cases where the penalty sought by the accusation is less than five years are judged in Criminal Courts, and the appeals against the judgments are resolved in the Provincial Courts.

If the penalty is greater than five years, the audience takes place at the Provincial Court and appeals go the Supreme Court, something that did not happen since 1997 (the ARSEC case) and that, after the reforms of the Penal Code, could not happen again if the accusation was only for cannabis trafficking.

So, in 2013 the Attorney General’s Office, which reports directly to the Government, sent Instruction 2/2013 to all prosecutors to accuse the members of cannabis associations not only of drug trafficking, but also of unlawful association, with which was exceeded the five-year limit request for punishment.

With that pole, one could jump to the next level and thus ensure that, if the Provincial Court acquitted the accused (as in our case), the prosecution could take the case to the Supreme Court. And so, one after another, several associations have been subject to the same treatment, so that there have been already several cases resolved the same way by the Supreme Court:

Associations cannot grow cannabis without committing a crime, with the exception of some unclear cases of cultivation in small groups. Based on these judgments, more and more associations throughout Spain are being intervened, and in many cities, as is already happening in Bilbao, it is practically impossible to find a cannabis association, since the few that survive do so semi-clandestinely.

What has led to the overturn of our sentence, as in the “Ebers’ case”, and surely the Catalan club Three Monkeys, is the introduction of a new element by the Supreme court that may benefit the accused: the existence of error. The Supreme Court suggested that, perhaps, the condemned in these cases had reason to think that what we were doing, growing marijuana for an association, was legal.

And it is true, we could have reasons, but at the same time, the Court concluded that we had not done enough to find out whether or not this was the case. That is the reason why it found us guilty, but it reduced the sentence to some extent. The problem is that all that reasoning about what we believed happened without asking the accused, and that is why the Supreme Court overturned the decision.

The Constitutional Court Overturns the Sentence Against Pannagh Members
The 2005 harvest, after being seized and returned, finally arrives at Pannagh’s premises in 2007

A Positive but Frustrating Sentence

The ruling is an important victory: if it is already difficult for the Constitutional Court to accept an application for a proceeding, having them agree with you is as difficult as winning the lottery.

However good, this is also frustrating. To begin with, part of our appeal was based on the fact that the members of Pannagh, unlike those of Ebers and Three Monkeys as well as other associations that have gone through the Supreme Court, relied on our own positive judicial record to think that what we were doing was legal. It is not that we read it in the press, it actually happened to us. This was ignored by the Supreme Court and, incredibly, by the Constitutional Court as well.

The SC made a “copy and paste” of the Ebers’ sentence and when we denounced it in the appeal, the CC did the same.

On the other hand, when the Court accepted the application for the proceeding, it declared  that “the matter raised transcends the specific case because it raises a legal issue of relevant and general social or economic repercussion”. This happens very rarely, in no more than one or two cases a year, and it usually means that the court wants to take advantage of this to resolve with special care some especially thorny legal issue.

Neither the Ebers’ proceeding nor that of Three Monkeys had this qualification, hence we thought that, being Pannagh a referent used by many CSCs in the past, our sentence was going to be more extensive and elaborated, and that it would clarify better the question of collective growing. But nothing of that happened.

Of the fifteen motives used to support the proceeding, only two were acknowledged: by criminalizing cannabis clubs, the Supreme Court has not done anyhing illegal. And that, therefore, whoever continues growing and dispensing cannabis in an association with hundreds or thousands of members in Spain can end up in jail.

Waiting for the End

Now, it is necessary that the Supreme Court pronounce itself, since it must issue a new ruling coherent with the Constitutional Court’s decision. As we already explained, after the sentence against the Ebers association was overturned for the same reasons as ours, its members were acquitted two months later by the Supreme Court.

The judges say that “not having witnessed the evidence or heard the accused directly, we lack the necessary faculties to rule out that this error was unavoidable. We are forced into an acquittal decision”. Nor can the case be sent back to the Court of Biscay, who was the one that acquitted the accused, since these issues were not raised in the trial and, therefore, the Court lacks elements to decide on this issue. Thus, it is reasonable to expect a similar decision in our case and that we will be acquitted.

Meanwhile, Pannagh remains closed and inactive since that day in November 2011, and its members have had to manage to find ways to get cannabis, which in half the cases was used for therapeutic reasons. At first, some members were accepted by other associations, but since many of them have had to close due to legal issues, the majority of the members have had to return to the black market. This is the sad consequence of criminalizing the associations: the illegal trafficking networks, which the courts should help close, are the only ones benefiting.

I would like to take this opportunity to congratulate our defense for its excellent work, especially Hector Brotons and the rest of the team from the Brotsanbert law firm, who have generously put great effort for this appeal.

I also want to thank Rafael Agullo, who collaborated in the case, and Maria Jose Carrera, our lifelong lawyer who was in charge of the defense during the investigation, the trial and the proceedings in the Supreme Court, and to whom we will likely resort to finish unrolling the last threads of this skein whose end, after all these years, finally seems to be close.

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