Source: Ricardo Navarrete-Varo, Marta Duran
Last update: 28 October 2008
In Spain, cannabis is included in the restricted plants list due to its harmful potential (1). To sale and cultivate cannabis is also forbidden (Article 368 PC). Nevertheless, cultivation for research, teaching and therapeutic purposes is allowed (2). Self-consumption is not punishable by law because the consumer is considered a sick person nor a criminal. Also possession prior to consumption is not unlawful, unless such consumption or possession is on the public via (street). The cannabis'seeds are not subject to audit and therefore to buy or selling them is legal.
Regarding the therapeutic use of cannabis, the Spanish authorities recognize the benefits of their effects for some diseases. The 2007 Report of Plan Nacional sobre Drogas, and institution that depends on the Ministry of Health, said that "there is scientific evidence for therapeutic use in the case of nausea and vomiting secondary to chemotherapy, loss of appetite in AIDS and terminal cancer and the treatment of neuropathic pain in multiple sclerosis"
Jurisprudence based on judicial rulings (STS of December 12 1990 and January 17 1994) says that cultivation for self-consumption it is not a crime, since only cultivations for criminal purposes is a crime and self-consumption it is not it itself a crime (cannabis and its derivatives in the Spanish Criminal Law, Sergio Alvarez Herrero). Although there are frequent arrests because of domestic small plantations of marijuana, most of them are acquitted when self-consumption purposes have been demonstrated (LaVerdad.es 4-10-2008). The Spanish Ministry of Health confirms it in his Report on Cannabis 2006 which states that "the Criminal Code does not consider a crime, in any case, consumption, possession for self-consumption and cultivation of cannabis whenever it is for self-use. There are also favourable rulings on the so-called "collective culture", that is, harvests are shared between members of the same association. On 2005, 150 kilos of marijuana from the Activist group Pannagh had been seized by the police and three of its members were arrested. Finally, they had not only been acquitted but also they got the weed back because the Hearing of Biscay found that the plantation met the "sharing-use" requirements.
Usually, Court decisions don't get deeper on the therapeutic purposes and they ruling that there is no crime if the crop is for self-consumption. Two precedents were notorious: in 1999 an Austrian citizen with cancer was acquitted by a criminal court of Barcelona's drug trafficking despite his arrest with two kilos of hashish at the airport in Barcelona. The defendant argued that he consumed the drug for therapeutic purposes. More recently, in 2006, a judge in Alicante acquitted a psychotherapist who cultivated 258 marijuana plants, weighing 3.5 kilos. The judge considered that there was enough evidence to show that marihuana helps the psychotherapist to treat the migraines so he made an inquiry to investigate the varieties." In 2007 the head of the Criminal Justice 1 of Jaen, Jose Antonio Luccini, acquiited Mogon, a neighbor of 33 that was surprised in his marijuana plantation of more than 5.3 kilos by the police. The defence argued that marihuana was for self-consumption to treat a insupportable pain from irritable bowel disease and the Judge acquitted the neighbour although the amount "far exceeded the what may be used for this purpose." Because the defendant voluntarily went in to the marihuana plantation judge considered that this demonstrated "good faith improper from who intended to smuggle."
In recent decades the Spanish main source of illegal cannabis (hashish from near by Morocco) has been moved by the cultivation for self-consumption. In the context of a major social movement for legal marihuana, paraphernalia grow shops
are numerous, as well as associations of farmers claiming for a legal regulation that governs them and avoid the existing "legal vacuum".
The authorized cannabinoid drugs that a doctor can prescribe in Spain are CESAMET® (nabilone) for nauseas and vomiting due to chemotherapy in cancer patients that not respond to standard antiemetic treatments and Sativex® (cannabis extract) for neuropathic pain due to multiple sclerosis. Both following the protocol of "Foreign medication" because they are not marketed in Spain. Sativex®, can also be prescribed as "compassionate use" for chronic neuropathic pain and wasting syndrome due to aids or cancer. The cost of both are provided by the administration.
It is difficult to quantify the number of patients treated with approved cannabinoids in Spain. In addition, there are many patients self-medicate with cannabis. Those patients self-cultivate it or accepts the donation by another grower or growers' association, with relative tranquillity.
(1) Lista de plantas cuya venta al público queda prohibida o restringida por razones de su toxicidad. (B.O.E. núm. 32, viernes 6 febrero 2004)
(2) Protocolo de 1972 de modificación de la Convención Única de 1961 sobre Estupefacientes (B.O.E. de 4 de noviembre de 1981).