According to the public prosecutor, 20 grams of cocaine could be extracted from this quantity of leaves (based on toxicological testing showing the presence of 0.4% of cocaine), adding up to an estimated value on the illicit Spanish cocaine market of 1,153 euros. Please do note the mathematical error here: given the quoted value of 0.4% the total should have been 18 grams, assuming perfect conversion. Based on these assumptions, however, the prosecution called for a four year prison sentence and a 2000 euro fine.
Up until this moment, the Provincial Court of Barcelona had been acquitting persons charged in similar cases. However, these judgments were overthrown by the Public prosecutors’ office in a challenge before the Supreme Court, resulting in sentences of 1.5 years in these cases. In Spain a sentence of less than two years does not result in actual jail time, but the person in question is left with a criminal record. In the Girona case, where charges were dropped, there was no possibility to acquit or to condemn, making that case an exception to this general rule. This case was also exceptional: the Bolivian citizen was ultimately condemned to 6 months of prison time with a fine of 30 euros (related to the price paid for the leaves in Bolivia); calls for his expulsion from Spain were dismissed.
How was this result achieved? From the outset ICEERS and allies have supported the defense, under the leadership of Ines Berman, by elaborating expert reports and sharing information with the lawyer in charge of the case. ICEERS also testified as an expert witness at the trial.
The defense strategy: claim the right to traditional use of coca and its benefits
Our strategy was based on two pillars: the lack of evidence of health harms, and the importance of traditional cultural use. In the first place, we argued that coca leaf is not listed within the Spanish jurisdiction as a substance that endangers human health. Moreover there exists, in fact, no evidence for negative health impacts of coca leaf consumption. We considered that if the coca leaf in the defendant’s possession was not destined for cocaine production, charges based on damage to public health would not hold. At the same time, until now no impartial, objective and exhaustive study on the health impact of coca leaf has been undertaken. A critical review by the WHO Expert Committee on Drug Dependence, the appropriate UN body to recommend changes in the current classification of coca in the international drug treaties, would be of fundamental importance to challenge the basis for including coca leaf on current international schedules of controlled substances (Peru and Bolivia tried, without success, to initiate such a review in 1992). Such a review is overdue, since much of the evidence used in 1950 to put coca leaf under international control through the 1961 Single Convention would today be considered racist, or failing to meet basic standards such as avoiding discrimination.
In the second place, we insisted that traditional use of coca plays a fundamental role in the societies and cultures of Andean Amazon communities; something that they bring with them when migrating abroad. Nonetheless, this fundamental right of indigenous people is not being reflected in the legal status of coca in places where these migrants settle. The connection of coca to the cocaine market, and its traditional meaning in places where the plant is not native, are some of the most challenging issues for the current international drug control system. In the defense we tried to contextualize the plant’s traditional use in Bolivia, explaining the social and legal control mechanisms at work in the country where the accused was born and raised.
The Tribunal’s arguments: Risk of supplying third parties and local coca leaf market
Much to our surprise, the main argument used to support the guilty verdict was that the circumstances constituted a “crime of abstract danger”, meaning that the mere possession of a substances considered to be toxic constitutes an alleged threat to public health, even if no damage is actually done. The accused, according to the charges, showed “a total contempt for the physical and mental health” of the people he would, supposedly, sell the coca leaf to.
Curiously, based on their legal knowledge and not hampered by any cultural sensitivity concerning the practice of coca chewing, the judges considered it to be “a well-known fact” that preparing coca tea would require 5 to 10 leaves. For this reason, the court considered that the quantity in the possession of the accused was too high to be destined for personal consumption, and thus was meant to be distributed to third parties. Not only that, the fact that the accused was unable to specify the exact number of coca leaves needed for a good chew, or for one liter of coca tea, combined with “the high amount of leaves” (sufficient for 440 days of consumption, based upon the metric of a handful of leaves) established, they argued, the clear risk of storage or distribution to third parties, putting collective health at severe risk.