By Constanza Sánchez, José Carlos Bouso, & Natalia Rebello
In March 2020, the results of a significant trial related ayahuasca importation in Spain concluded with an acquittal that paves the way for the future of ayahuasca in this country. There is one additional case in process in Spain, which we hope will be the last, based on the results of this trial, along with other historical precedents.
In this post, we analyze the details of the case, the legal route it took, as well as the implications of the sentence on the future of the legality of ayahuasca and other traditional plants in Spain.
A common case, with a disproportionate pre-trial detention
The sequence of events in this case were very similar to dozens of other ayahuasca legal incidents that have occurred in Europe over the last two decades.
A person living in southern Spain ordered approximately five liters of ayahuasca from their traditional doctor in Peru. The package arrived through a well-known international parcel delivery company via Germany, where customs authorities alerted the Spanish police to the contents of the shipment, “with a net weight of 5,746 grams of dark brown viscous liquid known as ayahuasca containing DMT.”
The Spanish police tested the sample again, which came back positive for amphetamine, a common occurrence in ayahuasca samples that undergo basic testing. It was determined that 22,864 doses of the illicit substance of 250 milligrams each could be derived from the more than five kilograms seized, with a total estimated value of 103,000 euros on the market. It took more than two months for the confirmatory analysis of the seized material to be conducted, the results of which showed that the liquid contained DMT, not amphetamine.
The procedure followed by Spanish authorities was also typical — a controlled and monitored delivery of the package was carried out, and the accused was arrested at the time when the delivery was received. As it was assumed that the contents were methamphetamine, he was held in pre-trial detention.
From that moment on, a series of events unfolded that under the guise of “protecting public health,” led this over 60-year-old man into a legal and judicial labyrinth of drug control. Unaware of drug control measures, the defendant had ordered ayahuasca for his own consumption to treat a health condition. Following arrest, he spent three months in one of the most complicated prisons in southern Spain (Alhaurín de la Torre). In this region drug law enforcement is particularly severe, because it is a very active transit area for international illicit drug markets, and where numerous criminal organizations dedicated to the large-scale drug trade (primarily cannabis resin and cocaine) operate.
“ICEERS gave us, and me in particular, the support I could rely on, because we had been told that everything was irreversible. By supporting me, I was then able to support my husband, because in those conditions he did not have the strength to continue, his health condition worsened and his physical appearance deteriorated seriously. He was no longer the same from any perspective. From our point of view, it was impossible. And from ICEERS, which is made up of wonderful people, I received reassurance that I could trust. And they have been proven right. I am infinitely grateful to each of its members, to ICEERS for existing, and to life that connected them to me.”
– V. B., the defendant’s wife
The long road to determining ayahuasca legality
Ayahuasca is a beverage that is not under international control, nor is it prohibited in Spain. However, the fact that one of the plants traditionally used in its preparation (chacruna, or Pshycotria viridis) contains dimethyltryptamine (DMT), a substance included (in its synthetic form) in Schedule I of the 1971 Convention on Psychotropic Substances. What this means is that when DMT is detected by the analytical instruments of the National Institute of Toxicology (INT), the entire quantity of the infusion is often interpreted as being DMT and, therefore, as prohibited.
If five liters of seized ayahuasca are considered to be the equivalent of five kilograms of DMT, this leads to petitions for high penalties by the Prosecutor’s Office. In Spain, penalty levels correspond to the commission of a crime against public health of substances that cause serious damage to health, as stated in the Article 368 of the Spanish Penal Code. In this case, the Anti-Drug Prosecutor’s Office requested four years’ imprisonment and a fine of 309,000 euros. Furthermore, the pre-trial detention was unjustifiably extended, as it took more than two months for the confirmatory analyses to be carried out.
The defended was represented by the lawyer Francisco Azorín, from the Brotsanbert law firm that specializes in the legality of traditional plants. The defense strategy, in which ICEERS participated actively and to which we contributed expert reports and testimonies in the trial, was effectively focused on two lines of argument. The first being that ayahuasca is not subject to control, neither in the international context nor in Spain. The second argument was that the scientific evidence published in recent decades has illustrated that ayahuasca does not pose a risk to public health. Moreover, research indicates that it can provide considerable benefits for the physical and mental health of people, when used in a ceremonial, controlled and safe context.
“We decided to put all the available information in the hands of the court, instead of opting for a strategy based on the non-quantification of DMT. The contribution of expert reports on ayahuasca’s legality, on the absence of risk to public health, as well as its therapeutic benefits, was key for the drafting of the sentence.”
– Francisco Azorín, lawyer
Ayahuasca: Toxic, narcotic or psychotropic drug?
A few weeks after the trial, we received news of the acquittal and we were able to read in detail the arguments of the court that led to this conclusion. We noted with satisfaction how many of the arguments used by the judge were taken from the expert reports that we provided. This is a direct result of findings from research conducted by ICEERS, both in the political-legal and health fields.
The 17-page ruling argues that “ayahuasca as a plant preparation is not subject to prohibition or control either internationally or nationally in Spain, as a psychotropic substance, drug, or narcotic.” Or, in other words, the concept of “intoxicating drug, narcotic or psychotropic substance” in Article 368 of the Spanish Penal Code cannot be interpreted as including ayahuasca.
This builds on the interpretation that has been extensively documented in the book by professors of Criminal Law at the University of Malaga, Dr. Antonio Martín Pardo and Dr. Juan Muñoz, El estatuto legal de la ayahuasca en España (The Legal Status of Ayahuasca in Spain, 2019).
The verdict is fundamentally significant for two reasons. First, because it is a recognition that the regulation of certain prohibited substances could bring more benefits than problems. Literally, the reporting judge stated that “a policy of greater tolerance accompanied by rigorous controls and regulation, avoiding absolute prohibition, could be more effective or, on the whole, bring more benefits than harm.”
The judge’s statement points to the fact that this change should be made in the political sphere, not in the judicial sphere. The judge’s message could be interpreted as, “Ladies and gentlemen, political decision-makers, as long as you do not change this policy, we, as judges will continue to apply the law. We are ready and prepared to apply a more efficient approach. Please get on with it.”
“During the oral trial, the Court was very attentive to the testimonies, with the aim, as we saw later, of applying the law according to current scientific knowledge. The judge drafted a judgment that can be considered a theoretical manual on drug trafficking and interpretation of the international drug control conventions. These rules are not clearly drafted, which means that situations of preventive imprisonment for ayahuasca continue to take place. We will be seeking compensation for damages for our defendant, who spent almost three months in prison because the administration took a long time to carry out the confirmatory analysis.”
– Francisco Azorín, lawyer
The second reason why this ruling is very relevant within the Spanish context is because it settles once and for all the legal complexity in which plants with psychoactive effects are entangled. While they are not controlled as plant products, they contain a compound that is. This is the case, among other ethnobotanicals, such as khat, which contains cathinone, mescaline cacti such as San Pedro or peyote, or psilocybe mushrooms, which contain psilocybin.
This sentence also settles the question of the possible theoretical inclusion of ayahuasca as being a controlled as a “preparation” of DMT. The INCB, according to the report, “provides us with a mechanism of authentic or at least qualified interpretation” that “contradicts this initial conclusion.” It concludes, therefore, that “ayahuasca cannot be understood to be covered by the 1971 Convention, even though DMT is.” This idea, supported for years by those of us who work for change in drug policies, who advocate that drug laws should not be applied to the field of traditionally used psychoactive plants, had been supported in some previous rulings in relation to ayahuasca, but never so carefully argued and substantiated as in this ruling.
“Over the last few years, ICEERS has collaborated with with lawyers and experts in traditional plants to develop we have developed defense strategies that are based on scientific evidence and human rights. Together we’ve supported movement away from classic arguments related to public health in these trials. Sustained research and strategic litigation efforts have borne fruit in Spain, where we have managed to turn around several disproportionate accusations and requests for sanctions, and obtained sentences such as this one, which further clarifies the legal status of ayahuasca in Spain.”
– Constanza Sánchez, Director of Law, Policy and Human Rights, ICEERS
The road ahead
While we hope that this is the last legal case in Spain regarding ayahuasca, there are still several legal processes underway for other defendants and ayahuasca seizures continue to take place.
“In 2020 and to-date in 2021 we have been informed of fourteen legal incidents in Spain. While it is true that the trend towards filing ayahuasca-related cases is becoming more frequent, the confusion among airport, customs and judicial authorities still persists.”
– Natalia Rebollo, Ayahuasca Defense Coordinator, ICEERS
However, the resolution of this case is a further step in the right direction and suggests that this may be, if not the last, then the second last trial related to ayahuasca in Spain. Efforts to educate justice system officials and policy makers must continue and these legal cases in Spain can be used to inform legal and policy directions in other countries.
“Expert reports and the defense strategy convinced the court that ayahuasca is not subject to control. But it is still rare for a sentence to consider or clearly state that ayahuasca does not pose a risk to public health, despite the abundant scientific evidence that illustrates this. It is now time to think of new strategies so that in the next trial, which we hope will be the last one, that it will be described in this way.”
– José Carlos Bouso, ICEERS’ Scientific Director
In recent years we have seen that, although in a large number of countries legal cases related to ayahuasca do not reach a custodial sentence or result in the enforcement of criminal prosecution, the packages are destroyed in almost all the cases. This leads us to reflect on why judicial authorities, even after they determine that it is not controlled by domestic law, continue to allow for the destruction of the ayahuasca that is seized. ICEERS continues to work to reverse this contradiction, which is inconsistent with the requirements of due process. After seven years of work by the Ayahuasca Defense Fund (ADF), the concern has gone from avoiding a conviction to recovering the seized ayahuasca. Remarkable progress, but there is still some way to go.