About drug law reform in Colombia

29 July 2012
Primer

Although the legislative trend in Colombia has tended towards the criminalization of possession and consumption of psychoactive substances, decriminalization prevailed when it comes to jurisprudence. In addition, while the government of former President Álvaro Uribe Vélez (2002-2010) insisted on prohibiting, persecuting and punishing drug consumption through legislative and judicial channels, the country’s health sector, influenced by more progressive trends for dealing with consumption, made important progress in the areas of risk and harm reduction.

  1. What are the current trends regarding drug laws in Colombia?
  2. What are the current drug laws in Colombia?
  3. What reform proposals and reforms to the drug laws have been made recently in the country?
  4. What impact have the drug laws had on the prison situation in the country?
  5. What does the law say about drug use? Is it a crime in Colombia? Figures on drug use
  6. What measures are being implemented to address problem drug use?
  7. Drugs and the peace talks
  8. What is Colombia’s stance in the international debate on drug policy?
  9. What role has civil society played in the debate about drugs in Colombia?
  10. Relevant drug laws and policy documents in the country

For the latest news on drug law reform in Colombia click here.


1. What are the current trends regarding drug laws in Colombia?

During the twentieth century, policies on the subject of drugs in Colombia were heavily influenced by the international legislation promoted by the United States. Over the last few decades of the twentieth century especially, with the increased importance of drug trafficking in the country’s economy and society, Colombia endorsed Washington’s agenda.

It was in this highly repressive atmosphere regarding drugs that in 1994 the Constitutional Court ruled in favour of decriminalising the personal dose in Colombia. Over the last two decades, significant attempts have been made to reverse this measure. Although these attempts have been unsuccessful, there are still practical obstacles preventing the decriminalisation of the personal dose from fully taking effect.

Although little concrete progress has been made to date in the area of legislation, the prevailing tendency today seems to favour tipping the scales the other way, towards less repression and more protection for the weakest sectors in the drug economy: growers and harvesters on the production side, and users on the consumption side. The new Narcotics Statute announced by the government has not yet been made public.

Although President Santos’s administration seems to view the legislative reforms taking place in other countries in the region with interest, and identifies with the analysis and decriminalisation proposals in the studies carried out by the OAS to address the drug problem in the Americas, the recommendations of the Advisory Commission on Drug Policy have yet to materialise.

The bill presented by Senator Juan Manuel Galán to legalise cannabis for medical purposes – for which President Santos has publicly expressed support – and the Ministry of Health Decree of November 12, 2015 to legalize the production and consumption of marijuana for therapeutic and medicinal uses, both may mark the start of a new direction in the legislative approach to drugs. The first bill was approved by the Senate in November 2014.

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2. What are the current drug laws in Colombia?

The law currently in force is Law 30 of 1986, known as the National Narcotics Statute (Estatuto Nacional de Estupefacientes - ENE). In September 2012, the executive presented Congress with a proposal for a new national statute on drugs and psychoactive substances, which would replace Law 30 if approved by parliament.

The law’s repressive stance regarding drug use underwent a significant change with the pronouncement of Constitutional Court Ruling C-221 on 5 May 1994 (delivered by Carlos Gaviria Díaz). Arguing that they violate the right to the free development of personality, this ruling declared unenforceable those articles of Law 30 from 1986 that make it an offence to carry or use minimum permitted doses of drugs. With this measure, Colombia became a pioneer in establishing a legal framework that offered an alternative to the total prohibition of drugs.

In 2009 a constitutional reform prohibited drug use, but without providing for the possibility of imposing punishments or compulsory treatment on drug users.

The Citizen Security Law, enacted in 2011, reformed the Criminal Code and eliminated the exceptional provision of not punishing the crime of narcotics possession if the quantity carried was equivalent to the personal dose. Nevertheless, and despite opposition from the Public Prosecutor’s Office, the ruling waiving punishment for possession of a minimum dose was upheld. In its ruling C-491 in 2012, the Constitutional Court once again made clear that possession of the personal dose remains decriminalised and that drug use should continue to be understood as an activity protected by the right to the free development of personality.

In practice, however, the Citizen Security Law has led to considerable confusion and uncertainty regarding the issue of the minimum dose. Even though both the Constitutional Court and the Supreme Court have made it clear that possession of the minimum dose is not a criminal offence, and despite the fact that the 2009 reform only mentions administrative sanctions, police officers on the street may apply repressive measures if they decide to take action against someone found in possession of a minimum amount, especially if that person belongs to a disadvantaged sector of society.

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3. What reform proposals and reforms to the drug laws have been made recently in the country?

This section highlights the most important proposals and changes to the law that have been made in recent years in Colombia.

A chronological summary of these changes, from the Constitutional Court’s 1994 ruling to the present day, can be found in this report.

Important changes currently under way - The Advisory Commission on Drug Policy was set up in January 2013. Its members are well-known academics and specialists on the subject, as well as former president César Gaviria (also a member of the Global Commission) and the former chief of the National Police, retired general Óscar Naranjo. The Commission has proposed that drug users should not be criminalised, and is due to make recommendations for how criminal networks and citizen drug users should be treated, as well as the quantities to be considered a minimum dose of any given drug. In July 2014, the Commission’s first report analysing the problem of drug use and proposing guidelines for addressing it was submitted to the Ministry of Justice. The analysis coincides with OAS proposals about decriminalising the use of psychoactive substances.

In May 2015, the Commission on Drug Policy published its Final Report: Guidelines for a new approach to drug policy in Colombia. This report proposes a review of drug policy in the country and makes ten key recommendations: 1. Create an agency for drug policy; 2. help reduce the risk of consumers; 3. rethink the fumigation of coca; 4. regulation of medical marijuana; 5. go beyond the simple 'say no to drugs'; 6. change the way we measure success against drugs; 7. raise the profile of money laundering efforts; 8. rethink extradition; 9. modernise the National Statute on Drugs and Psychoactive Substances; 10. lead the global drug policy debate.

In addition, with the aim of updating its drug policy, the government is preparing a new narcotics bill, the National Statute on Drugs and Psychoactive Substances, which is designed to replace Law 30 from 1986. The government announced this new bill at the start of 2013 but its publication has been delayed. The bill would define the minimum dose of synthetic drugsfor the first time. Possession of up to 200 milligrams or three tablets of amphetamine-type drugs would be permitted (except for methamphetamines, the use of which would continue to be banned). The authorised doses of cocaine (1 gram) and marijuana (20 grams) would be maintained, but the authorities could resort to Legal Medicine in the case of people found in possession of the more concentrated varieties. For the first time, the new statute would also make it obligatory for all municipalities to allocate funding for drug use prevention programmes and treatment for addicts. Following the guidelines set by the Constitutional Court, it would continue to protect drug users from being charged with criminal offences.

Information about the 2012 bill that proposes to decriminalise the growing of plants used to manufacture psychoactive substances can be found in this report.

August 2014 - Senator Juan Manuel Galán presented draft law 27 of 2014 to Congress. The objective of this bill is to regulate the use of cannabis for therapeutic purposes.

November 2015 - The Ministry of Health and Social Protection of Colombia, announced a new decree intended to regulate the possession and growing of Cannabis Seeds and Plants, as well  as regulating the processes of production, manufacture, export, distribution, trade, use and possession  of these (seeds and plants) and the products derived from them, for solely medical and scientific purposes. See the text of the Decree

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4. What impact have the drug laws had on the prison situation in the country?

The percentage of prison inmates held for drug-related crimes is quite high in Colombia. According to the National Prison and Penitentiary Institute (Instituto Nacional Penitenciario y Carcelario -INPEC), this group of crimes accounts for the third highest number of people in jail, surpassed only by crimes against property and crimes against life and personal integrity (homicide)

Prisons are overcrowded. At the end of 2013, according to INPEC, 120,032 people were being held in prisons that have a maximum capacity for 76,066 inmates. About 15 per cent of these people are in jail for having committed drug-related crimes (trafficking, manufacture or possession). Over the last ten years, drug-related offences are one of the four types of crime that have been swelling the prison population in Colombia.

According to a study by DeJusticia, “the vast majority of people jailed for drug-related activities between 2007 and 2009 did not have any significant involvement in drug trafficking networks, as only 2 per cent of them were charged with additional offences such as conspiracy to commit a crime or carrying arms illegally.”Read more in this article.

Drug-related crimes seem to be increasingly committed by women in Colombia. Although more men than women are in prison for drug offences, the percentage of women in jail who are there due to drugs is higher than the percentage of male prisoners jailed for drug offences. The women behind bars for drug crimes usually have little schooling and low incomes. Accepting the risk of losing their freedom is seen as a small price to pay when set against the possibility of earning money to support their family. [See the chapter on Colombia in the report on drugs and prisons, "Systems overload".]

According to the organisation DeJusticia, prison sentences in Colombia are harsher for those selling drugs or committing a minor crime in the retail drug trade than for murderers or rapists. In recent years these sentences have increasingly been passed against women.

Durante la Asamblea Extraordinaria de la OEA en septiembre de 2014, Colombia presentó el informe: Alternativas al tratamiento penal de los delitos relacionados con drogas

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5. What does the law say about drug use? Is it a crime in Colombia? Figures on drug use

Drug use is prohibited by the constitution, and there are laws banning it in certain specific circumstances, but it is not a criminal offence. Possession of the quantity of a drug permitted for personal use is not a crime. Law 30 of 1986, article 2, clause j says that “The dose for personal use is defined as a quantity of marijuana not exceeding twenty (20) grams; a quantity of hashish not exceeding five (5) grams; a quantity of cocaine or any cocaine-based substance not exceeding one (1) gram, and a quantity of methaqualone not exceeding two (2) grams.” (See also this CEDD infographic).

The drug courts that are being set up in other Latin American countries with OAS support as an alternative to imprisonment do not exist in Colombia. The current feeling is that treatment should be voluntary, but the subject of drug courts is being explored.

Some figures – According to the most recent national study on drug use published by the Colombian government in 2013, “consumption of alcohol and illicit substances increased in Colombia between 2008 and 2013, with marijuana being the substance whose use was found to have increased the most.” The study also reported increases in cocaine, crack, ecstasy and heroin use. Drug use in general rose from 8.8 per cent in 2008 to 12.2 per cent in 2013. Read an official summary of the report here. Also according to this study, marijuana is the most popular drug among Colombians. 11.5 per cent stated that they had used it at some time in their lives, and 3.3 per cent said they had used it in the last year. In second place is cocaine, with 3.2 per cent of people saying they had used it at some time in their lives. There are also the so-called “emerging drugs”. Surveys reveal the appearance of certain inhalants (which are the most commonly used drug after marijuana among schoolchildren) and LSD, whose use by university students has increased. For some observers, this increase shows that current policies have failed. This article also looks at the increase in domestic demand. This article also looks at the increase in domestic demand.

For more information on drug use, visit the Observatorio de Drogas de Colombia website. See also the 2012 Colombia Report on an epidemiological study of drug use among university students in 2012.

With regard to drug use, one commentator said recently in the press: “With the 2012 study of drug use among university students, it was all about the increase in the use of ecstasy and LSD. With the 2011 study of drug use in schools, it was all about the increase in drug use in private schools. But in the new 2013 National Study on the Use of Psychoactive Substances, although the use of various drugs has increased, there’s no hiding the fact that the main problem in Colombia is alcohol.”

On the substances most used in Colombia, see this infographic in Semana magazine.

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6. What measures are being implemented to address problem drug use?

The increase in drug use has been interpreted by local analysts as a failure of the public policies implemented until now. One United Nations adviser has stated that the EPS (Health Promotion Facilities) are not complying with Law 15-66, which provides for treatment for people addicted to psychoactive substances. “The expert declared that drug users are stigmatised and excluded from various social circles, leaving them more vulnerable to falling into the gutter where, as well as drug use, they are at risk of committing certain crimes.”

According to press reports, the government – through the Ministry of Health – is preparing a new plan to address drug use and the health problems that result from it. The plan will be unveiled at the end of 2014. “The roadmap for dealing with this problem will operate in parallel with the agreement signed with the FARC. It will form part of post-conflict policies and affirms that the Colombian government’s antidrugs policy will from now on be based on a public health approach.”

Innovative harm reduction programmes have been implemented at the local level for several years now. In September 2012, with the aim of providing integrated treatment to addicts and reducing crime rates in the city, the government of Bogotá under the current mayor, Gustavo Petro, launched a pilot project called CAMAD – Medical Care Centres for Drug Addicts. These are mobile units located in marginal areas of the city where medical and social work professionals provide care to addicts. This programme is in keeping with the view of the drug problem as a public health issue. For more information on the CAMAD, see this TNI report.

The Bogotá city government is also considering launching a pilot health project to treat crack addicts using marijuana. The proposal has sparked fierce controversy and the Ministry of Justice has expressed opposition to it, but the project itself represents a shift in the repressive attitude towards drug users. The treatment programme would be provided in the mobile medical care centres for drug addicts (CAMAD). See also this video from September 2012.

Another noteworthy local programme is Proyecto Cambie in the city of Pereira, which seeks to prevent injecting drug users from contracting HIV. More information on this project can be found in this press report and this video.

In the opinion of the organisation Acción Técnica Social (which works on harm reduction more broadly), the National Drugs Plan being prepared by the Colombian government does not reflect these local experiences.

We recommend reading this study: Auto-suministro de cannabis en población habitante de la calle en Bogotá. Complejidades en torno al tráfico y consumo de bazuco, efectos y alternativas para su tratamiento en el contexto de la salud pública, la convivencia y la seguridad ciudadana - Report produced by the Centro de Estudios y Análisis en Convivencia y Seguridad Ciudadana CEACSC, January 2014

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7. Drugs and the peace talks
The subject of drugs was included in the agenda for the peace talks being held in Havana between the government and the FARC guerrilla. The issues of illicit crops, drug production and trafficking are among the major challenges for a sustainable peace in the country. In May 2014, the Colombian government and the FARC reached a provisional agreement on drugs. TNI analyses the scope of this agreement in this report.

Recommended articles and reports on the subject:

Find more on drugs and the peace process in Colombia on this page

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8. What is Colombia’s stance in the international debate on drug policy?

Although in the domestic arena it has not committed to significant reforms of the country’s drug laws and policies, on the international stage the government of President Santos has called for the start of a debate on alternative policies and openly questioned the existing prohibitionist regime. It also supports the idea of considering drug use as a public health issue. President Santos played a very active role in this regard at the 2012 Americas Summit held in Cartagena, Colombia.

In October 2012, the presidents of Mexico, Guatemala and Colombia sent a letter to UN Secretary General Ban Ki-moon, calling on “the United Nations not only to participate in but to lead a debate befitting the twenty-first century, setting aside false prejudices, and thus enable us all to find solutions under new and effective approaches.” Read the joint declaration here.

April 2013 - First Working Meeting on Drugs between the Republic of Uruguay and the Republic of Colombia. The first working meeting on drugs between these two countries was held on 18-19 April 2013 in Montevideo. The minutes of the meeting can be found here.

During the 2014 World Economic Forum in Davos, President Santos once again showed himself to be a progressive figure on the subject of drugs, and was given widespread coverage in the international press. He again pronounced himself in favour of opening up a debate with the aim of shifting the current paradigm on drugs. He also talked of the need to undertake research with a view to legalising cannabis.

At the 2014 session of the Commission on Narcotic Drugs, Colombia was part of a small group of Latin American countries calling explicitly for a review of the current policy on drugs.

In the Commission for Narcotic Drugs (CND), March 2015, Minister of Justice Yesid Reyes called on the UN to change the drug strategy and review the international drug conventions. Here is the speech of the Minister.

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9. What role has civil society played in the debate about drugs in Colombia?

Broad swathes of civil society and experts on drug policies in Colombia have expressed their opposition to the various re-criminalisation initiatives that emerged especially during former president Uribe’s time in office.

In response to the government’s plans to modify Law 30 from 1986 and replace it with a new statute, a group of citizens has presented the Ministry of Justice with a document that amounts to a counter-proposal. In it, they call for a prevention policy that focuses mainly on social integration rather than emphasising the punitive consequences of personal drug use. They also ask for civil society to be allowed to participate on this issue.

As in other large Latin American cities, there is also a growing pro-cannabis movement in Colombia’s urban areas.

The harm reduction programmes taken forward by the Bogotá city government have been controversial, but numerous civil society groups in Colombia have given them their support.

As part of the peace talks, and on the agenda item regarding drugs in particular, numerous initiatives have been put forward by civil society groups wishing to contribute their experiences and proposals. The producers of illicit crops have proposed setting up an organisation to protect producers, with a view to finding ways to regulate these crops.

In August 2014, several Colombian NGOs and think tanks, together with the UNODC and the Colombian government, launched a 'National Dialogue on the Future of Drug Policy', as a space for broad-based debate on drug policies.

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10. Relevant drug laws and policy documents in the country

Legislative and Government Documents

Studies, surveys and other documents

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