Legal cannabis in Basque Country?

Confusion about the regulation of cannabis social clubs
Friday, December 16, 2011

Health officials of the Basque Country, an autonomous region of Spain, announced that they will introduce a bill to regulate the "cultivation, sale and consumption" of hashish and marijuana. The bill, which will be presented to the regional parliament next year, was put forward on December 12, 2011, by regional health officials during the presentation of the regional addictions plan. Several media outlets broke the news as an intent to legalise cannabis use, while in fact the proposed legislation only aims to regulate cannabis user associations that cultivate for personal use.

The head of the regional health authority, Rafael Bengoa, explained the proposed bill would allow over-18s to consume cannabis in a "responsible" manner, with all necessary information about the consequences. "It's better to regulate than to ban," his deputy Jesus Maria Fernández said. Regulating the cultivation, sale, and consumption of cannabis is a better approach to cannabis use, he stated, calling it "a practice that is already consolidated" in the Basque Country that has officially registered more than 40 consumer associations - the only autonomous region in Spain that has recorded the registration of cannabis social clubs. Bengoa added that "technical and legal studies have been undertaken" and that the regional government wants to "open a debate" with associations representing cannabis users to help "shape their rights." 

Amidst television and newspaper headlines announcing that the Basque Country was legalising cannabis consumption, the anti-drugs prosecutor of the Basque Country, Ana Barrilero, said that the proposal was not within the competence of neither the Basque Government nor the Basque Parliament. Both institutions don’t have the legal capacity to amend the Penal Code and Public Safety Act that establish the rules on use and possession of cannabis. Amending those laws is the competency of the National Parliament.

The Basque Government was forced to issue a new statement to clarify its position. Bengoa said that the regional government "at no time raised the legalisation or permissiveness towards the consumption of cannabis, but wants to establish a regulation within the existing laws aimed at preventing trafficking, the protection of minors, health prevention and provide regulatory support for self-cultivation for consumption in a responsible manner." 

The Basque Health Department stated that its aim is to regulate the sale, consumption and cultivation by associations of users. These associations should meet certain requirements, such as limited access only to members, no entry for minors, recordkeeping of the cultivation and storage of cannabis and full information about the consequences of cannabis use and respect for the health of others.

Cannabis social clubs

In fact, the proposal seems to be tailor-made for the cannabis social clubs in the Basque country that have been advocating regulation over the past 15 years. The proposal is clearly aimed to end the legal grey zone in which the user associations are operating. Representatives of the cannabis social clubs have repeatedly asked the Basque Parliament to regulate the cultivation, sale and personal use of marijuana to end the legal uncertainty.

Interviewed by the Diario Publico newspaper, Martin Barriuso, the president of the Federation of Cannabis Associations (FAC), said that he welcomed "the statement of intent” of the Basque Government. He said that two recent events may have triggered the current proposal. One may be the raid at the Pannagh cannabis club by the Bilbao Municipal Police on November 14, 2011. The police seized the cannabis stock of Pannagh and arrested Barriuso and two other members. After three days in jail, they were released on bail; 15,000 euros in Barriuso’s case. "The most likely end is that the case will be filed, as happened in 2005, but until then the damage is already done," Barriuso said. In 2007, the Provincial Court of Vizcaya determined that collective cultivation was legal and forced the police to return the cannabis that was seized in 2005.

The second reason that may have triggered the decision of the Basque Health Department, according to Barriuso, could have been a recent forum on cannabis organized by the Ararteko (the Basque ombudsman office) in October 2011. In its final document, the Ararteko concluded that there was a "lack of political will" to change the current legislation and argued that "consumption and possession for personal consumption should not be punished. It is necessary to devise imaginative ways in which adult consumers, who do not want to resort to the black market, have access to consumption."

According to El País, the proposal of the Basque Government is a sign that the pressure to revise drug policies in Spain begin to bear fruit. Although the new bill does not mean full legalisation, it nevertheless is a first step to fill the legal vacuum in which cannabis users are forced to move. The Basque Federation of Associations of Cannabis users (Federación de Asociaciones de usuarios de cannabis de Euskadi – EUSFAC) released a statement on the proposal, saying that "the right to self-cultivation and the possibility to distribute cannabis in a closed, non-commercial circuit, is perfectly viable without modifying the existing Penal Code."

EUSFAC also said that their intention is not and never has been to promote or encourage the use of cannabis and that it does not advocate a legalization that involves a commercial cannabis trade, similar to tobacco or alcohol. They do not propagate the so-called Dutch coffeeshop model that tolerates the public sale of cannabis but does not regulate cultivation and supply. Such a system is inconsistent, resulting in a lack of control over the origin and quality of the cannabis, and risks leaving cannabis production in the hands of criminal organisations, without duly guaranteeing the rights of the users. “We do not consider this the most appropriate model to ensure the quality and reduce the risks associated with cannabis use,” EUSFAC declared.

Weed pass postponed

The Netherlands is currently struggling with its coffeeshop model. The new conservative government wants to restrict access by introducing a “weed pass” system that will allow only legal residents of the Netherlands to buy cannabis and turn coffeeshops into closed clubs with a maximum of 2,000 resident members.

The government this week postponed the introduction of these measures. A test rollout in southern cities planned for January 2012 to solve problems caused by French, German and Belgian "drug tourists" who drive across the Dutch border to purchase cannabis, will now be delayed until May because of practical difficulties. The pass system will be applied nationwide in 2013, despite widespread opposition. Coffeeshop owners say it will violate privacy laws, since it will require them to store passport and other information about their customers. Legal experts say the plans will only create new problems.

Some southern cities are lobbying against the plan after several academics predicted it will result in street dealers taking over the cannabis trade again – the very problem the tolerance policy introduced 35 years ago aimed to address – and propose to regulate the cultivation and supply of cannabis to coffeeshops through licenses. The alderman for public health of the city of Utrecht, Victor Everhardt, announced that the city will start an experiment with a closed club model for adult recreational cannabis users growing their own cannabis in a cooperative, modelled on the example of the cannabis social clubs in Spain, despite opposition of the Minister of Justice.

Ultimately, both countries might end up with a regulatory system of cannabis supply if national politicians will have the political will and courage to solve a problem local governments have to deal with every day providing imaginative solutions in association with local entrepreneurs and user organisations.