About drug law reform in Costa Rica

19 June 2015
Primer

In contrast to other Central American countries, the possession of drugs for immediate personal use is not a criminal offence in Costa Rica. In August 2013 the cultivation, manufacture, transport and trafficking of drugs have all been made a criminal offence under the same article, which provides for a prison sentence of between 8 and 15 years without making any distinction between the offences. The government of Costa Rica supports the launch of an open international debate on the issue, but has declared itself against decriminalisation.

  1. What are the current trends regarding drug laws in Costa Rica?
  2. What are the current drug laws in Costa Rica?
  3. What reform proposals and reforms to the drug laws have been made recently in the country?
  4. What does the law say about drug use? Is it a crime in Costa Rica?
  5. What impact have the drug laws had on the prison situation in the country?
  6. Is there compulsory treatment for dependent drug users? Are there drug courts in Costa Rica?
  7. What stance has Costa Rica taken in the current international debate on drug policy?
  8. What role has civil society played in the debate about drugs in Costa Rica?
  9. Relevant drug laws and policy documents in Costa Rica

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

In recent years the government of Costa Rica has joined other countries in the region in calling for an open international debate about the need to reform current strategies regarding drugs. In contrast to other Central American countries, the possession of drugs for immediate personal use is not a criminal offence in Costa Rica.

Although there are still major challenges, mainly with regard to decriminalising drug use and securing the right to health for drug users, as well as protecting vulnerable groups held in prison for small-scale trafficking offences, the government of Costa Rica has achieved some progress over the last decade in seeking to harmonise domestic drug control laws with human rights legislation.

One example of such progress is this Circular issued by the Public Prosecutor’s Office in 2010, which sets out the legal justification for why people will no longer be jailed for the “simple, non-criminal possession of drugs”. Another is this Circular issued by the Public Prosecutor’s Office in 2011, describing the procedure for the courts to assess police reports and how to destroy confiscated drugs that are unauthorised for use but have no connection to any criminal activity. [More information in section 5]

Two other measures seen as positive are the approval in August 2013 of a partial reform of the Narcotics Law (Law 8204) to include proportionality and gender specificity in specific crimes, and the debate going on in parliament about legalising marihuana for medicinal uses.


(2) What are the current drug laws in Costa Rica?

There are two laws that regulate drug-related activities. The first is the General Health Law (Law 5395) and the second is the Narcotics and Psychotropic Substances Law (Law 8204). The latter was reformed in 2001 and 2009, when its name was also changed to the “Law on Narcotics, Psychotropic Substances, Unauthorised Drugs, Related Activities, Money Laundering and the Financing of Terrorism”.

The general health law prohibits the planting, cultivation, import, export and trafficking of drugs, but it is in Law 8204 where the crimes and penalties are defined. As its title indicates, this law not only regulates drug-related crimes but also includes provisions governing money laundering, the legitimisation of capital and the financing of acts of terrorism, as well as corruption among public servants due to these activities.

The cultivation, manufacture, storage, transport, distribution and trafficking of drugs are criminal acts that are all listed together in Article 58 of this law. The punishment established for all these activities is a prison sentence of between 8 and 15 years. This is the penalty applicable to anyone who distributes, markets, supplies, manufactures, prepares, refines, processes, extracts, cultivates, produces, transports, stores or sells any of the drugs, substances or products listed in the law, or who grows the plants from which these substances or products are obtained, without being legally authorised to do so. The same punishment is imposed upon anyone who has these drugs, substances or products in their possession without proper authorisation for any of the purposes listed, and anyone who possesses or sells seeds that can be germinated or other natural products that are used to produce the listed drugs.

The Costa Rican Drugs Institute (Instituto Costarricense de Drogas - ICD) is the stewardship body charged by Law 8204 with drawing up the National Drugs Plan. See the National Drugs Plan 2013-2017 here


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

In 2010, soon after President Laura Chinchilla took office, the post of National Anti-Drugs Commissioner was created. This is a vice-ministerial post in the president’s office, whose work supposedly involves police or military intelligence. Also during the Chinchilla government, debates held in the Legislative Assembly were critical of the treaty on joint patrols which Costa Rica has had for many years with the United States Coastguard, because it allows US warships to dock and US soldiers to disembark in Costa Rican ports, justified by the discourse of the fight against drug trafficking.

Several initiatives to modify Law 8204 were presented in 2012, focusing on two different points.

The first is the fact that this law fails to differentiate between small, medium and large-scale drug traffickers and there is no proportionality in sentencing, since Article 58 lists every possible offence and considers them all serious crimes.

Secondly, a bill to reform Article 77 of Law 8204 in order to include proportionality and gender specificity was approved in August 2013. With this reform, a judge is able to assess the circumstances of women who, for reasons of extreme poverty or due to coercion, bring drugs into prisons. The sentence will be more lenient for women living in poverty who are heads of household and the carers of children, older people or people with a disability, or for older women in a socially vulnerable position. Based on these criteria, judges may order that the sentence be served under an alternative arrangement such as house arrest or probation. The penalties will range from 3 to 8 years in prison rather than the prison sentences of between 8 and 20 years.

This bill, which introduced proportionality for women, is now on the statute books as Law 9161.

More on the changes made to the narcotics law to benefit women in a vulnerable situation can be seen in this video, which explains the cases in which women may benefit, and in this interview on Costa Rican television with Carmen Muñoz, leader of the Citizen Action Party (Partido Acción Ciudadana – PAC).

This is what the UNODC says about Costa Rica’s reform, citing it as an example of good practice in legislation on drugs: “It is also important to highlight the reform of Article 77 of Law 8204 adopted by Costa Rica... This reform represents good practice, not just because it includes the gender perspective but also because it does not establish a minimum sentence for these crimes. Thus, the law allows judges to use their discretion, giving them the authority to take the woman’s particular situation into account and make use of measures other than imprisonment, such as house arrest, probation, women’s refuges or restricted freedom with electronic tagging devices.”

Legalisation of cannabis - In the last few years, several proposed laws whose purpose is to regulate cannabis use have been brought before Congress. Some of these proposals argue that the main objective is to make marihuana available for medicinal use and, at the same time, generate revenue that can be reinvested in the state and thus prevent the involvement of drug traffickers. Other proposals call for total openness to cannabis use, providing that treatment for problem use is guaranteed and encouraged, while other initiatives only go as far as legalising the domestic growing of plants. Cannabis growing is actively pursued by the police in Costa Rica. In December 2014, Congress started to debate the legalisation of marihuana for medicinal purposes. Click here to read the bill which seeks to regulate medicinal and industrial cannabis, the proposed "Law on the research, regulation and control of cannabis and hemp plants for medicinal, food and industrial uses" brought before parliament by Congressman Marvin Atencio Delgado.


(4) What does the law say about drug use? Is it a crime in Costa Rica?

Drug use has been decriminalised in Costa Rica since the first version of the law enacted in 1988 (Law 7093), which made it subject to an administrative punishment of “daily fines.” The 2001 version (Law 8204) decriminalised drug use completely and Article 79 speaks of facilitating voluntary treatment: “Voluntary in-patient and out-patient treatment and rehabilitation will be promoted, facilitated and provided free of charge in public or private health centres for people found consuming or using drugs or unauthorised substances in the street or public spaces, for the purposes of detoxification or to cure them of their addiction.” In 2010 and 2011, following an increase in arrests of drug users by the police, the Public Prosecutor’s office issued two circulars (see section 1) instructing court prosecutors to reject all cases of possession for personal use and describing how to dispose of confiscated drugs.

The law does not set thresholds, but one court has passed sentence in appeals for annulment overturning convictions for people who were carrying up to 200 grams of marihuana or cocaine, arguing that it was for personal use and because there was no evidence that they were committing any crime as defined in Article 58 of Law 8204.

In practice, the police tend to stop and search anyone they find using drugs on the street, and the decision whether or not to seek prosecution is left to their own discretion. It is the prosecutors who take the final decision about whether there is enough evidence to bring a case to court. In fact, the vast majority of arrests are of ‘drug retailers,’ through the ‘controlled sales’ operations carried out by the Legal Investigations Unit (Organismo de Investigación Judicial - OIJ) and the Drug Control Police (Policía de Control de Drogas - PCD).


(5) What impact have the drug laws had on the prison situation in the country?

Breaking the law on drug control is considered a serious crime. This is why the sentences imposed are for a minimum of 8 years and are much harsher than the sentences for aggravated robbery (5 years minimum) or sexual abuse of children (3 years minimum).

The consequence of applying Article 58 of Law 8204 has been unlimited disproportionality, as the same sentencing criteria are used for someone who has been trafficking large quantities of drugs and someone who has been selling small quantities on the street or growing a few plants.

This disproportionately harsh sentencing for drug offences is one of the main causes of prison overcrowding. As is the case in other Latin American countries, Costa Rica’s prisons are overloaded. In 2010, 14,963 people were being held in prisons that officially have the capacity to hold 8,536 detainees.

According to figures obtained by the Drug Control Police and the Legal Investigations Unit, 1,647 people were arrested for drug trafficking in 2011, and about half of them were convicted and sentenced to prison. Those convicted for drug-related crimes account for about 15 percent of the total prison population.

Women detainees account for only seven percent of the total prison population in the country, according to figures from the Ministry of Justice and Mercy (Ministerio de Justicia y Gracia - MJG, 2009). Another key statistic (MJG-ICD, 2009) is that at least 64 percent of these women are jailed for breaking the Law on Narcotics (8204), with the sale, transport or concealment of drugs and possession for sale being some of the most common offences.

According to figures compiled by the Public Defender’s Office, in March 2012 there were 120 women incarcerated for bringing drugs into prisons. This is equivalent to about 15 percent of the total number of women prisoners. The majority are young women aged 25-35 who are single mothers.

The reform introducing proportionality and gender specificity was approved in 2013, and in August that year President Chinchilla awarded a pardon to seven women imprisoned for drug trafficking offences. More than 120 women have benefited from the reform of the law, which is solving the problem of overcrowding in the Buen Pastor prison. As part of the process of reintegrating the women who have benefited from the programme, a network of public institutions has been set up. The network includes the Public Defender’s Office, the National Institute for Women (Instituto Nacional de las Mujeres - INAMU), the Mixed Social Assistance Institute (Instituto Mixto de Ayuda Social - IMAS), the Justice and Peace Ministry, the Costa Rican Drugs Institute (Instituto Costarricense sobre Drogas - ICD), the Alcoholism and Drug Dependence Institute (Instituto sobre Alcoholismo y Farmacodependencia - IAFA), the Child Support Agency (Patronato Nacional de la Infancia - PANI) and the National Learning Institute (Instituto Nacional de Aprendizaje - INA). For more information on the bill, the network and its impact, see this Justice System Watchdog website entitled “inter-institutional actions that rebuild lives”.

Washington Office on Latin America (WOLA) analysis of the criminal justice system and Latin America’s persistent prison problems found that Costa Rica stands out from the other Latin American countries looked at in the study for having at least carried out modest reforms of its prisons to prevent them becoming a breeding ground for criminals and increasingly aggressive gangs. For more information on the prison situation in Costa Rica, see this article and this study on crime and drug use among women prisoners.

Although drug use has been totally decriminalised in Costa Rica under Article 58 of Law 8204 (2001) and Article 79 of the same law, which provides greater clarity about its decriminalisation, drug use is still considered an infringement of the psychotropic substances law and the police continue to confiscate drugs and refer cases for prosecution. With its Circular 02-2010, the Public Prosecutor’s Office announced that it would be rejecting briefs presented by the police which indicate the simple possession of drugs for non-criminal purposes. The Public Prosecutor’s Office argued that this decision is based on Articles 28 and 39 of Costa Rica’s Constitution, as well as Article 1 of the Criminal Code.

The effects of this can be clearly observed in the graph below, which shows infractions of the psychotropic substances law. The “drug possession” category is the one showing the greatest reduction, contributing to the significant fall in the number of cases brought before the courts.

Graph: Statistics on the Criminal Prosecution of Adults, 1998-2012. Judicial System Department of Planning. This graph was drawn from the study on Drug Policy and Human Rights: Reforms in Costa Rica.

The photos used in this section were taken in 2015 by Jessamine Bartley-Matthews and Coletta Youngers (WOLA) during a visit to the Buen Pastor Prison in San José, Costa Rica


(6) Is there compulsory treatment for dependent drug users? Are there drug courts in Costa Rica?

Compulsory treatment only applies to children in Costa Rica. However, initiatives to introduce drug courts have recently been considered. In Costa Rica this is known as the Court-Supervised Drug Treatment Programme (Programa de Tratamiento de Drogas con supervisión Judicial - PTDJ), and it is part of the judicial system’s Restorative Justice Programme. The aim of the programme is to keep drug users out of prison and it is targeted specifically at people convicted of minor offences and drug users who are not involved in selling or trafficking. The programme, which was designed jointly by the Costa Rican Drugs Institute, the judiciary and the OAS, was launched in February 2013 with two drug treatment courts to begin with in San José.


(7) What stance has Costa Rica taken in the current international debate on drug policy?

In the international arena the government of Costa Rica tends to be in favour of prevention and security initiatives, as well as supporting the debate on decriminalising drug use. On several occasions during her time in office, the country’s previous president, Laura Chinchilla, stated publicly that the drug problem should be seen as a public health issue rather than a matter of criminal law. In a 2012 interview, she said: “We have been applying the same strategy for about ten or fifteen years now, and the situation in our countries in terms of drug trafficking, violence, extortion and corruption, far from improving, has got worse over that same period of time.” Although she usually took a cautious attitude to, for example, Guatemalan president Otto Pérez Molina’s drug decriminalisation initiative, Chinchilla expressed her support for a rigorous debate about “the drugs problem” due to the failure of the war on drugs.

Together with Honduras and Belize, Costa Rica has signed a declaration adding support for the petition brought by Mexico, Colombia and Guatemala which calls on the United Nations to launch a review of the current war on drugs strategy.

Shortly after taking office, current president Luis Guillermo Solís met with Otto Pérez Molina and made statements in favour of opening up the debate on drugs in Costa Rica.

At the 58th Session of the Commission on Narcotic Drugs, held on 9-17 March 2015, Costa Rica made the following statement: “Costa Rica hopes that the UNGASS 2016 will provide a forum for the knowledge and evidence produced by the United Nations system’s international organisations, the scientific community and civil society to be heard, in order to bring institutional arrangements concerning drugs closer to the reality of citizens, especially those citizens who are in a comparatively vulnerable situation. To achieve this objective, my country is currently taking forward an inclusive consultation process in different multilateral forums, in order to ensure that all these stakeholders can participate. (...) My delegation wishes to place on record the progress that the countries of the Americas have made in the debate on the world drug problem and the region’s commitment to tackle it by means of integrated policies that address all its causes and components in a balanced and multidisciplinary way.”


(8) What role has civil society played in the debate about drugs in Costa Rica?

Various movements in favour of legalising marijuana have appeared in recent years in Costa Rica. They are making use of social networks and other online campaigning tools to promote their objectives. One example is the group known as ‘Yes to the legalisation of marijuana in Costa Rica’.

The Costa Rican Association for Research and Action on Drugs (Asociación Costarricense para el Estudio e Intervención en Drogas – ACEID) has also played a leading role in campaigning for drug policies with a human rights focus and against the stigma and discrimination suffered by drug users.

The 2015 CannaCosta Rica Conference, held in May, brought together a group of experts from the entire Central American region for the first time to talk about medicinal uses of cannabis and industrial hemp.

Dialogue on Drug Policies and Human Rights in Costa Rica, jointly organised by ACEID and state institutions, was held in June 2015.


(9) Relevant drug laws and policy documents in the country

Legislative and Government Documents

Ley General de Salud 5395

Ley de Estupefacientes y Sustancias Psicotrópicas 8204

Plan nacional de drogas 2013-2017

Proyecto de ley que reforma el artículo 77 de la Ley 8204 - Reforma a la ley 8204 del 26 de dicimembre de 2001, para introducir la proporcionalidad y especificidad de género

CND Vienna - Intervención de S.E. Pilar Saborlo de Rocafor Embajadora y Representante Permanente de la Misión Permanente de Costa Rica ante los Organismos Internacionales con sede en Viena, March 2015

Studies, surveys and other documents

Instituto Costarricense sobre Dogas - Relación entre el delito y el consumo de drogas en mujeres sentenciadas en el Centro Penal Buen Pastor, Costa Rica, 2014

WOLA - Reforma penitenciara en Latinoamérica. La experiencia costarricense, By Adriana Beltrán and Ashley Davis. September 26, 2014

Perspectivas, FES Costa Rica - Políticas de drogas y Derechos Humanos: reformas en Costa Rica. Por: Ernesto Cortés Amador/Demaluí Amighetti López, June 2014

AMBIENTICO, Revista mensual sobre la actualidad ambiental - Legalizar la marihuana para beneficio humano y ecosistémico, June 2014

Políticas de drogas y salud pública en Costa Rica. By Giselle Amador and Ernesto Cortes