A large number of Cannabis Social clubs have opened in Spain under the rules of the right of association. Are they legal?
Article 368 of the Criminal Code defines as a crime against public health, the cultivation, processing, trafficking and illicit possession, as well as activities that promote, favour or facilitate the consumption of toxic drugs, narcotic drugs and psychotropic substances, including cannabis.
Concerning the consumption and possession of these substances, both behaviours go unpunished as long as they do not take place in public places or roads. In this case, they are sanctioned through the Organic Law of Citizen Security, also known as the Ley Mordaza (Gag Law) after its reform in 2015.
However, when the destination of the crop is for one’s consumption or shared consumption, we face a conduct not sanctioned by the Criminal Code. That is, provided that the requirements recently established by the jurisprudence of the Supreme Court are met:
- They are habitual consumers who group to consume the substance
- The consumption of the same one is carried out in closed places
- The act is limited to a small group of identifiable and specific consumers
- The quantity is small or, at the very least, minimum and adequate for consumption in a single session or meeting
- The consumption must be immediate.
Concept and Regulation of Cannabis Social Clubs
Derived from the idea of shared consumption emerges the colloquially known as Cannabis Social Clubs that take legal form from non-profit associations made up of cannabis consumers.
Their existence relies on two constitutional guarantees:
- The right to privacy, which allows citizens to consume cannabis in their private environment
- The right of association, which recognizes to people the ability to group to grow and/or consume an individualized amount of cannabis in a closed space (articles 18 and 22 of the Spanish Constitution).
The activity of Cannabis Social Clubs lacks of a state legislation. Several autonomous communities have passed laws to regulate them, but the Constitutional Court has repealed all of them.
Requirements to open a Cannabis Club
Since Cannabis Social Clubs acquire the legal form of association, they are subject to the provisions of the Organic Law regulating the Right of Association.
Under the foregoing, opening a cannabis club will require the agreement of a minimum of 3 people who undertake to share knowledge, means and activities to achieve licit, common and general or particular interest purposes.
Besides, it will be necessary to endow the association with the corresponding Statutes that will govern its operation, as well as to grant the corresponding foundational act. There is also the obligation to register the association in the Register of Associations, autonomous or state depending on its field of action, for the sole purpose of publicity.
Beyond this and in the absence of express regulation regarding these types of associations, the jurisprudence of the Supreme Court has configured the indicators that will favour that the activity developed by cannabis social clubs are not criminally punishable, for example:
- The absence of all publicity or flaunting behaviour
- The cultivation and/or consumption in an enclosed area
- The absence of any vestige of commercial or lucrative spirit.
In Spain, Cannabis Social Clubs are not illegal in themselves. However, the cultivation and consumption of cannabis that takes place in an enclosed environment are in a legal vacuum situation.
In the absence of express regulation, the Supreme Court has endorsed Cannabis Social Clubs when it comes to small associations. But it has also put an end to large clubs with a large number of members, as well as those that allow unlimited entry to new members, considering that this may constitute a crime of drug trafficking.
Finally, it is worth highlighting the importance of good legal advice when opening this type of associations, as well as during its operation, since it must be carried out with absolute transparency and responsibility, and subject to the guidelines established by the Supreme Court, avoiding the risk of crossing the thin line that separates them from illegality.
Rebeca Pérez Yáñez
This article is not considered as legal advice