Migrants and traditional use
How to reconcile migrant communities’ right to the enjoyment of cultural life (including the use of traditional plants) with international drug control obligations.
For the past several years, Fundación ICEERS, with the support of allied organisations such as the Transnational Institute (TNI), has been assisting in the legal defense of people with a migrant background who are prosecuted in Spain (or other European countries) for the possession or importation of coca leaf for the purposes of traditional use. These people originate from countries with a legal framework allowing for licit traditional use of coca leaf, such as Colombia, Bolivia, Peru and Argentina. These cases have had different outcomes and, when people have been convicted, sentencing has not been uniform. In this sense, communities have struggled to exercise their basic rights to enjoy their own culture, illustrating new challenges for human rights and drug control. These challenges need to be met within the framework of the 2030 Agenda for Sustainable Development, a new reference for UN drug control mechanisms and the global drug policy debate at large.
Almost two years ago ICEERS celebrated the positive result of a court case related to coca leaf in Girona, Spain. After three years of uncertainty, the Public Prosecutor decided during trial to withdraw the charges of drug trafficking against a Colombian citizen residing in Catalonia for receiving by mail a 2 kilogram package of ground coca leaf. Although the withdrawal of charges against the accused, who had been charged with a crime against public health, was very welcome news to the person involved, to his family and friends, and to drug policy reformers, the prosecutor’s decision to withdraw charges, unlike an acquittal or a decision by the judge to reject the charges, does not result in any formal legal precedent which could be relied upon by others accused under similar circumstances.
Last November we also learned about the latest court decision from a case related to coca leaf possession in Spain, in which we had worked closely with the defense team for over two years.. This case relates to the broader issue of traditional use of this plant, beyond its local native contexts, and how migrants from the Andean Amazon region are deprived of a legitimate cultural practice, which is embedded in the places from which they come.
Coca leaf: on trial again in Spain
A Bolivian citizen from Santa Cruz de la Sierra settled in Spain more than a decade ago. Returning from a visit to his family and his motherland, he was detained at Barcelona airport in possession of eleven bags of coca leaf: a total of 4.5 kilograms for chewing (a traditional habit known as “pijcheo” in the native language Aymara) and for brewing tea.
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.
The absence of cultural sensitivity in the interpretation of the norms made it impossible to establish a clear measure of traditional plant consumption. When we serve ourselves a coffee on a daily basis we do generally know exactly how many grams of coffee we use for each cup: “a handful” of coffee beans would be a sufficient indication.
The insistence of the defense that the accused was not planning to convert the leaves into cocaine, plus the mention of the existence of a “grey” market for coca in the substantial Andean community living in Spain, turned out to be a double-edged sword. This argument caused the court to consider that transformation into cocaine was not essential to establish a crime, but that the possibility of trading the coca leaf itself was sufficient. Although this constituted a new element not previously reflected in court decisions, it failed to take into account the reality that many migrants may be unable to visit their families, or purchase local products from their countries of origin, for many years at a time. This fact was strongly emphasized by the lawyer and the accused.
Taking all the arguments into account, the Court sentenced the accused to 6 months of prison and a fine of 30 Euros, half of what he allegedly paid for the coca products at a Bolivian market place. He was not expelled from the country, and can continue his professional and family life in Spain. However, the years of uncertainty and suffering while awaiting trial, and a permanent criminal record, are the heavy price he has had to pay for disproportionate and punitive drug laws.
At the international level: slowly but surely
A good example of recent incremental progress is a study currently underway at the UN office of the High Commissioner on Human Rights (OHCHR) on the repercussions of the Global Drug Problem for the full realization of Human Rights. Numerous organizations, such as the Transnational Institute1 and ICEERS, have published recommendations for the report, warning of the problematic effects when plants, such as coca leaf, are reduced in law and policy to pure molecules and active compounds. The tendency to isolate ancestral plants from their traditional and cultural use is a consistent factor in judicial trials. The report presented by ICEERS was taken into account for the elaboration of the OHCHR document, which included a special section on the rights of indigenous peoples and the religious and cultural use of ancestral plants. The inclusion of traditional coca use in the final report of the OHCHR, with reference to Article 18 of the International Covenant on Civil and Political Rights (freedom of thought, conscience, and religion), acknowledges the use of controlled substances in religious and ceremonial contexts when historic evidence for this use exists. Even though the Human Rights Council requested that the Commission on Narcotic Drugs (CND) take this document into account in its 62nd session, the Commission elected not to do so. During the CND session of 2019, at a dialogue between the Commissions’ Presidency and Civil Society Organizations, a representative from ICEERS asked how States could respect and guarantee the use of coca leaf by migrants, in terms of the 2030 Agenda for Sustainable Development. The Commissions’ Presidency deferred responsibility, arguing that States have flexibility to submit recommendations for reclassification of controlled substances.
Although legal incidents related to coca leaf possession are not frequent, they are also no longer isolated cases. ICEERS receives more and more petitions for legal advice on the matter from across Europe, where Andean Amazon descendent communities number in the hundreds of thousands. Current drug policies do not address this situation and result in disproportionate penalties, considering that these are traditional cultural practices that do not pose a threat to public health or safety. Migrant communities’ right to cultural life and their rights to use traditional plants should be reconciled with states’ obligations under the international drug control regime. The clash between human rights and drug control deserves our attention, and deeper understanding. The new framework for debates on international policies (The 2030 Agenda for Sustainable Development) must respond to the challenges generated by the globalization of traditional practices which are no longer are limited to a specific territory or population.
1 In the TNI report «Connecting the Dots…Human Rights, illicit crops and alternative development» it is recommended that “Countries truly committed to human rights protection in drugs policy must recognise that, when it comes to indigenous, cultural and religious rights, full compliance will require the amendment of, or derogation from, certain provisions in the drug control treaties.