I. INTRODUCTION
The concept of ‘personal consumption’ is of normative relevance in the international legal framework for drug control and in the national legal systems of many countries. Under the international legal framework for drug control,Footnote 1 the obligation for State parties to treat drug ‘trafficking’ as a criminal offence liable to criminal sanction is relaxed in relation to drug possession, purchase and cultivation when it is for ‘personal consumption’.Footnote 2 With the endorsement of several United Nations agencies, a growing number of countries have adopted or now seek to implement new domestic frameworks that include the decriminalizationFootnote 3 of drug use, possession and cultivation when it is for personal consumption.Footnote 4 There is now a growing body of human rights law amongst multiple jurisdictions that includes drug use within the constitutionally protected area of privacy.Footnote 5 It is the potential breadth of the concept of ‘personal consumption’ in the substantive law of countries where such conduct is excluded from the ambit of the criminal law that this article seeks to explore.Footnote 6
The legal framework of Spain's ‘cannabis clubs’ provides a useful case study for exploring the normative boundary between ‘trafficking’ and ‘personal consumption’. In recent decades, cannabis consumers in Spain have created cannabis associations for the collective cultivation of cannabis and its distribution on the private premises of the associative body. ‘Cannabis club’ is the term used to describe this practice, the criminality of which is a continual source of doctrinal debate and judicial pronouncement there. The continued operation of cannabis clubs in Spain has generated interest in the international drug policy literatureFootnote 7 and has influenced legislative reformsFootnote 8 despite the absence of extensive legal scrutiny or theoretical analysis of the context in which they evolved.
Spain has a continental legal system, and all of its criminal offences are contained in its criminal code. The doctrine of legal goods (also referred to as the doctrine of legal interests) is a basic concept in Spain as well as in other Continental legal systems of the ‘Germanic legal circle’.Footnote 9 A legal good is an interest or good that the law properly recognizes as being necessary for social peace or for individual well-being and as therefore meriting legal protection.Footnote 10 The notion of a legal good (bien jurídico in Spanish, from the German Rechtsgüt) has a heuristic function in continental legal systems;Footnote 11 it is a useful term for referencing what the legislature had in mind, for categorizing offences within the criminal code by the interest sought to be protected and for distinguishing therein between collective goods (bien jurídico colectivo, from the German kollektive rechtsgüter) and individual goods. Its closest counterpart in Anglo–American legal systems is the harm principle;Footnote 12 however, whereas the primary function of the harm principle is to serve as a critical tool for assessing the legitimacy of criminalization in a liberal democracy, the ability of the doctrine of legal interests to serve a normative role is disputed.Footnote 13 The doctrine is grounded in positive law, not in normative principles concerning what the scope of the law should be. Both the harm principle and the doctrine of legal goods are criticized for leading to ‘circularity’ in doctrinal discussion and in judicial decisions on the scope of the criminal law. The main problem with the harm principle is perceived to be the lack of clarity regarding what ‘harm’ truly is.Footnote 14 The principal criticism of the doctrine of legal goods is that ‘little progress has been made in developing normative criteria for determining when a legitimate interest for legal protection is present’.Footnote 15 Both the principle and doctrine have been described as circular.Footnote 16
Because of its criminal law doctrine and the structure of its criminal code, Spanish jurisprudence essentially reframes the distinction between ‘personal consumption’ and ‘trafficking’ as one between public health (the legal good protected by Spain's drug offence) and individual health. The extent to which the collective cultivation of cannabis by groups of friends endangers public health and thereby falls within the scope of the criminal law has occupied the courts in Spain for the last two decades and continues to be a source of uncertainty. This article is not concerned about the legitimacy of public health as a legally protectable interest. Rather, it is concerned that public health is a particularly difficult concept to define, making the problem posed by the emergence of cannabis clubs for Spanish legal doctrine closely aligned with the principal challenge to the harm principle: what is a harm? The theoretical incoherence and normative limitations of treating the public/individual health distinction as unitary in the sense of capable of definition in contradistinction to the other (one is present wherever the other is not) has been explored in philosophical literature on the scope and meaning of ‘public health’, which makes clear that deep scrutiny is required of both sides of ‘the demarcation’ (public and individual health).Footnote 17 Whereas the Spanish jurisprudence is helpful in exploring the scope of drug trafficking (endangerment to public health), it fails to directly address the other side of the demarcation (personal consumption). This article will explore the scope of ‘personal consumption’ as a normatively relevant concept in its own right. To do so, it considers comparative constitutional case law in which privacy has been identified as the right intruded upon by offences that criminalize personal consumption.
It will be argued that that the only way out of the circularity of the doctrinal debate on whether or not public health is endangered by cannabis clubs to a criminal extent is to treat the identification of an endangerment to a legal good (public health) as the first step in determining whether the criminal law should bite. In human rights law, a violation of certain human rights is justified when it occurs in accordance with a law that seeks to protect a (legitimate) legal interest and the violation is a proportionate response to the necessity of protecting that interest. In other words, a human rights framework requires consideration of the extent to which public health is endangered by the conduct and the extent to which an individual's rights are endangered by the measure that protects public health. The role of the international human rights framework in providing ‘a readily available and legally binding set of broad indicators’ against which drug policy goals can be assessed has previously been identified in the drug policy literature.Footnote 18 Elsewhere, Simon Flacks has persuasively argued that a human rights framework is the only appropriate framework, in accordance with both law and ethics, through which drug regulation should be addressed.Footnote 19 As will be seen from the discussion of comparative human rights law on drug offences, the advantage of a human rights framework is that it goes further than drawing an abstract distinction between the public and private and requires any violation of the private realm to constitute no greater interference by the public authority than is necessary to achieve the intended objective of public health.
The comparative constitutional case law is useful in identifying privacy as the right intruded upon by criminal offences impinging upon personal consumption. Its shortfall is in not exploring the scope of personal consumption. This historical examination of the development of cannabis clubs in Spain shows that the proponents of cannabis clubs, through their efforts to prevent their conduct from endangering the legal conception of public health, have succeeded in establishing a potential zone of personal drug consumption that outstrips the zone expressly protected in the comparative law discussed. The article therefore concludes with a discussion of the capacity of privacy to shape a broad conceptualization of ‘personal consumption’ that builds on the analytical framework developed by the Spanish law on cannabis clubs in order to provide greater normative coherence to the distinction between criminal and non-criminal drug-related conduct.
II. THE TRANSNATIONAL CONTEXT
The two terms ‘trafficking’ and ‘personal consumption’ provide the conceptual framework for the penal provisions of the international drug control regime. This section will show that ‘trafficking’ is a poorly defined and ‘elastic’ concept, and ‘personal consumption’ is not defined at all in international treaties or elaborated upon in official commentaries.Footnote 20 It will also be seen that although the international drug control regime acknowledges the potential for normative barriers to the scope of ‘trafficking,’ what exactly these might be is not elaborated upon in the treaties or official commentaries or indeed within European Union debates on the harmonization of these concepts. Although European attempts at harmonization were confined to the identification of common definitions and did not consider normative criteria, what emerges from these attempts is a clear desire amongst Member States to draw a distinction, at least in enforcement and sentencing practices, between the two concepts of ‘trafficking’ and ‘personal consumption’.
The definition of the term ‘illicit traffic’ caused major difficulties in the negotiation of the 1988 Convention. The principal source of disagreement was identified at the time as being between one group of delegations that ‘strongly favoured a broad-based definition covering all aspects of the drug problem from production and supply to demand’ and another that ‘preferred a technical definition to a generic one and argued that it was premature to make consumption the subject of international action’.Footnote 21 The ‘general consensus’ was that instead of being defined, illicit trafficking would be understood as a generic term for all offences. Possession, purchase and cultivation for personal consumption would be distinguished, and the obligation to criminalize this conduct would be subject to the constitution and basic principles of each signatory's legal system.Footnote 22 This compromise position was a political fudge that succeeded in obscuring the underlying tensions in the global consensus.
Several calls have been made since then by both governmental and non-governmental bodies within the European Union to refine the concepts of drug trafficking and personal consumption.Footnote 23 The first attempt at harmonization of the European conception of drug trafficking was made by the European Commission in 2001 in its proposal for a Council framework decision laying down minimum provisions for the constituent elements of criminal acts and penalties in the field of illicit drug trafficking.Footnote 24 To prepare for this initiative, the Commission carried out a study of the definitions used and penalties applied in the field of drug trafficking in Europe.Footnote 25 In its subsequent proposal, the Commission underlined that it proposed a common definition that covered acts classified as offences in all Member States and that the essential criteria in this definition were the notions of acting ‘for profit’ and ‘without authorisation’.Footnote 26 The definition proposed by the Commission specifically excluded (i) simple users who illegally produce, acquire and/or possess narcotics for personal use, and (ii) users who sell narcotics without the intention of making a profit (for example, someone who passes narcotics on to their friends without making a profit), which it stated to be ‘in line with the practice in all the Member States’. In Article 1 of the Commission's proposal, ‘illicit drug trafficking’ was defined as ‘the act, without authorisation, of selling and marketing as well as, for profit, of cultivating, producing, manufacturing, importing or sending or, for the purpose of transferring for profit, of receiving, acquiring and possessing drugs’ (author's emphasis).Footnote 27 Article 2 of the proposal required Member States to make illicit drug trafficking, as defined in Article 1 of the proposal, a criminal offence. According to the Commission, this proposed definition embraced ‘the key elements’ of trafficking in the 1988 United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances.Footnote 28
It took the Council of the European Union over two years to resolve the disagreements and finalize a text that it then took the European Parliament seven months of further discussions to agree upon. As noted in the explanatory statement of a Report by the Committee on Citizens' Freedoms and Rights the Commission had wanted to propose ‘stricter definitions than those laid down in the UN conventions on the fight against drugs, but the Council reduced the definition back to those in the conventions’.Footnote 29 In the ensuing Council Framework Decision 2004/757/JHA,Footnote 30 we find a similar compromise or political fudge to that reached in the 1988 Convention.Footnote 31
The Council Framework Decision does not include a definition of drug trafficking but instead lists the conduct Member States are obliged to make punishable in Article 2 under the heading ‘Crimes linked to trafficking in drugs and precursors’. Article 2(1) of Council Framework Decision 2004/757/JHA provides that ‘Each Member State shall take the necessary measures to ensure that the following intentional conduct when committed without right is punishable: a) … the offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch in transit, transport, importation or exportation of drugs; … c) the possession or purchase of drugs with a view to conducting one of the activities listed in (a); d) the … transport or distribution of precursors, knowing that they are to be used in or for the illicit production or manufacture of drugs.’ Article 2(2) specifically excludes from the scope of the Framework Decision conduct described in paragraph (1) ‘when it is committed by its perpetrators exclusively for their own personal consumption as defined by national law’Footnote 32 (emphasis added).
The Council Framework does not include a definition of ‘personal consumption’ and leaves it to the national legal systems to define. We will now turn our attention to the principal focus of this article, which is the struggle of the Spanish legal system to maintain a clear distinction between ‘trafficking’ and ‘personal consumption’. As we will see, the cannabis club model created in Spain would not satisfy the Commission's proposed definition of drug trafficking because of the absence of profit, but in the absence of a clear definition of trafficking, it continues to straddle the murky boundary between the two concepts.
III. SPANISH DRUG LEGISLATION
Prior to 1967, drug trafficking in narcotic substances and the unauthorized sale of pharmaceutical substances deemed capable of harming health were addressed in the same article of the Spanish Criminal Code, which criminalized the unauthorized production of these materials for the purpose of their commercialization as an offence against public health, punishable by a fine.Footnote 33 The provisions stipulated that where the substances were toxic or narcotic (including cannabis), then the fine should be at the higher end of the scale, but in all other respects the law treated the drug trafficker and the unlicensed purveyor of pharmaceutical goods as one and the same.Footnote 34 Although the offence only specifically referred to the production (elaboración) of drugs, the Supreme Court interpreted the offence broadly to embrace all commercially oriented conduct involving drugs, including trafficking and possession for which the defendant's intention was to commercialize the product.Footnote 35 Civil preventative measures (such as internment for rehabilitative and educational purposes and outpatient treatment) were available and frequently applied to people intoxicated by alcohol and other drugs.Footnote 36
In 1966, during the dictatorship of Francisco Franco (1939–1975), Spain ratified the UN Single Convention on Narcotic Drugs 1961 (the Single Convention). The Narcotics Act 17/1967 (the 1967 Act) provides that all substances listed in Schedule IV of the Single Convention (including cannabis) may not be produced, cultivated, trafficked, possessed or used except in quantities necessary for medical and scientific research and with authorization from the relevant State department.Footnote 37 The 1967 Act did not create any criminal offences or penalties for breach of its provisions, but any such conduct was deemed to be illicit (albeit not necessarily criminal or otherwise punishable) on account of the Act. The primary purpose of the 1967 Act was to incorporate the provisions of the Single Convention 1961 into Spanish law and thereby specify the substances the subsequent criminal and administrative offences on drugs in its domestic law relate to. Reforms introduced to Spain's Criminal Code in 1971 (Ley 44/1971) were the first to expressly criminalize conduct related to narcotics as a distinct offence from the unauthorized trade in pharmaceuticals.Footnote 38 Article 344 of the Criminal Code created a generic criminal offence against public health for all activities, expressly including cultivation, fabrication, production, transportation, possession, sale, donation and trafficking, that promote, encourage or facilitate illicit narcotic use.Footnote 39 The explanatory memorandum to Ley 44/1971 stated that whereas drug trafficking had hitherto only been criminalized indirectly (by the Supreme Court's broad interpretation of the offence of unauthorized production), it was now expressly prohibited in the legislation.Footnote 40 Because of the specific articulation of drug ‘possession’ in the criminal offence, several prosecutions were brought against people found in simple possession of narcotics. The Supreme Court explained that possession for personal use remained outside the scope of the offence.Footnote 41 The Court justified its decision on the grounds of (i) the wording of the revised Article 344, which criminalized the specified activities ‘and any other means of promoting, encouraging or facilitating drug use’; (ii) the legal good the offence sought to protect (its bien jurídico),Footnote 42 which it noted was specified in the Criminal Code as being the collective good of public health; (iii) society's acceptance of drug consumers as individuals who should not be punished by the criminal law but instead rehabilitated in accordance with the provision of the Law on Social Danger 1970;Footnote 43 and (iv) the distinction drawn in previous Supreme Court jurisprudence and by several parties to the Single Convention, including Switzerland, between possession for supply and possession for personal use. The Supreme Court's decision, whilst not welcomed by the national prosecutor, was accepted as a correct interpretation of Article 344.Footnote 44
In 1983, after Spain's transition from dictatorship to democracy and the ratification of the Spanish Constitution in 1978, urgent reforms were introduced to the Criminal Code to update it to reflect the values enshrined in the new Constitution.Footnote 45 The reforms included a subtle rewording of the criminal offence on drugs to more clearly reflect the exclusion of possession for personal use from the criminal law.Footnote 46 The same revision introduced a distinction for sentencing purposes between ‘hard’ drugs (those that cause serious damage to health) and ‘soft’ drugs (that cause less harm to health, including cannabis) and reduced the maximum sentences for drug offences as well as providing a staggered approach to sentencing—which contributed to a general perception that the Spanish government was being soft in its approach to drug offences.Footnote 47 A political backlash ensued against the PSOE Footnote 48 government's approach, including campaigns by public authorities and political parties to prohibit cannabis consumption in public places—eloquently illustrated in this quote from the socialist mayor of Valencia: ‘Whoever wants to smoke a joint, do it at home’.Footnote 49
The first associations of cannabis consumers, the Madrid Association of Consumers of Cannabis Derivatives (1987) and the Barcelona Association Ramón Santos of Cannabis Studies (ARSEC) (1991), were established in response to these campaigns. In 1992, partly in response to the political backlash,Footnote 50 the government introduced the ‘Corcuera Law’, which provided for administrative penalties for drug consumption and possession in public places and for the tolerance of such conduct by owners of establishments open to the public.Footnote 51
Throughout the parliamentary debates on the ‘Corcuera law’, the Partido Popular, then in opposition, repeatedly tabled amendments that would have criminalized possession for personal use, arguing that Spain's ratification of the 1988 Convention obliged it to do so and that the system of administrative fines for public consumption was insufficient to satisfy Spain's treaty obligations.Footnote 52 Article 3(2) of the 1988 Convention obliges parties to establish as a criminal offence the possession and cultivation of drugs for personal consumption unless doing so would be inconsistent with the parties’ constitutional principles and the basic concepts of their legal systems. The PSOE government maintained that this exception applied to the Spanish legal system, and both houses of parliament repeatedly rejected the amendments proposed by the Partido Popular. The Spanish government did not specify in the parliamentary debatesFootnote 53 which constitutional principles or basic concepts the criminalization of possession or cultivation for personal consumption would be in conflict with, but frequent reference was made to the Supreme Court's jurisprudence concerning the doctrine of legal goods, to the right to freedom and to the principle of minimum criminalization.Footnote 54 A new Criminal Code was introduced in 1995 that did not include a criminal offence for possession for personal consumption.
The principal administrative and criminal infractions relating to drugs are now contained, respectively, in Organic Law 4/2015 for the Protection of the Security of the CitizenFootnote 55 and in Article 368 of the Criminal Code. The consumption and possession of drugs in a public place and the cultivation of drugs in a place that is visible to the public are punishable under administrative law with financial penalties. Wherever such conduct amounts to a criminal offence, it ceases to be punishable under the administrative law. Article 368 of the Criminal Code makes it a criminal offence
to cultivate, produce, traffic, or otherwise promote, encourage or facilitate the illegal consumption of toxic drugs, narcotics or psychotropic substances, or to possess these substances with such objectivesFootnote 56 (emphasis added).
The source, meaning and implications of the phrase ‘illegal consumption’ in Article 368 have greatly exercised the minds of the Spanish legal profession. How can any activities specified in Article 368 be criminal when all that is facilitated by them is drug consumption, an activity that is not (at least when conducted in private) punishable by law and therefore not illegal?Footnote 57 According to the Supreme Court, although neither the UN treaties nor the 1967 law provide for any sanctions for the conduct proscribed, they do state that the possession or use of the drugs listed in the Schedules to the Convention is unlawful unless authorized by the State on medical or scientific grounds. As pithily summarized by the Supreme Court, ‘Article 368 does not punish consumption, but it does punish all activity that encourages it.’Footnote 58
IV. THE DOCTRINE OF SHARED CONSUMPTION DEVELOPED BY SPAIN'S SUPREME COURT
During the 1990s, Spain's Supreme Court expressed its ‘innovative spirit’ by developing the doctrine of shared consumption, the practical effect of which was to exclude possession for shared consumption amongst a closed circle of drug consumers from the scope of ‘trafficking’, thus equating it with non-criminal personal consumption.Footnote 59 The doctrine applies to drug sharing when there is no risk of sharing with members of the public. The Supreme Court justified its creation of the doctrine on the grounds that the legal good protected by Article 368 was public health, and the inclusion of shared consumption within the offence would make it disproportionately (desmesurada) broad.Footnote 60 This reference to proportionality might suggest a normative turn in the Court's application of the doctrine, but no mention was made of any right or interest that such criminalization might infringe. The Court's reasoning was simply that the good to be protected by the generic criminal offence is public health, and similar to possession for the purposes of personal consumption, when drugs are shared amongst a close group of friends and drug consumers, the drugs are not distributed to ‘others’, and the public health is therefore not affected, or at least not to any significant extent, meaning that no criminal offence is committed.
Cultivation of cannabis is specifically listed in Article 368 as an activity that might promote the unlawful use of drugs. The Supreme Court (with one notable exception discussed below) has consistently ruled that cultivation will only amount to a criminal offence when it facilitates illicit drug consumption by third parties. Thus, cultivation is treated similarly to actions such as drug acquisition, demand and production that are not punished by the criminal law when their objective is personal consumption (including shared consumption). There is no criminal offence in the absence of ‘otherness’; when the cultivation does not promote, encourage or facilitate consumption by others, it is not punishable in criminal law.Footnote 61
Whilst a criminal offence will not have been committed in the absence of the ‘otherness’ (alteridad) that amounts to a threat to public health, the precise meaning of ‘otherness’ has proven elusive. The shared consumption doctrine is the means by which the Supreme Court has sought to identify the absence of ‘otherness’. The doctrine has continued to evolve since its inception in the 1990s as the circumstances in which parties have sought to apply it have expanded, but the resulting case law has been described as contradictory.Footnote 62 The Supreme Court has noted that public health is a particularly abstract concept; it exists neither as a measurable reality nor as the sum of the health of individual people.Footnote 63 Jacob Dopico Gómez-Aller, author of the most comprehensive critical analysis of the Court's application of the shared consumption doctrine, attributes the inconsistencies and contradictions within it to the fact that public health is ‘an ideal, with incredibly vague outlines, at least in the jurisprudence on drug trafficking; not so much in other offences that endanger public health such as those for pharmaceuticals and food’.Footnote 64 The Supreme Court's reframing of the distinction between ‘personal consumption’ and ‘drug trafficking’ as a distinction between public health and individual health limits its normative reach by reifying the abstract concept of ‘public health’. The extent to which the analytical framework created by the Supreme Court is ‘theoretically flawed’ and ‘normatively useless’ can be illustrated by an analysis of recent Supreme Court decisions on the inapplicability of the shared consumption doctrine to cannabis clubs. The best explanation of the theoretical shortcomings of the reification of public health is provided by public health theorist John Coggon:
Setting the public up as an entity that is in and of itself ontologically separable from the individual people it comprises is formally problematic. It pulls something from nowhere – essentially off the back of a metaphor – and then obscures any sound purpose of the metaphor. Conceptual notions such as the public good, public purpose, or public interest do not require the conceptualisation and reification of an abstract concept. In fact, the creation of such an entity is problematic and can lead to considerable (and illusory) analytic problems: the public's interests enter into conceptual normative disputes, for example ‘between the individual and society’. Such a formulation pits people outside of and against something of which they are supposed to be a part. This is a point of crucial importance to the sound analysis of public health. We should reject as analytically crippling and conceptually invalid the idea that we can draw an antagonistic dichotomy between ‘the individual and society’.Footnote 65
The challenge posed by cannabis clubs to the coherence of the shared consumption doctrine will be examined below, but first we must understand how civil society sought to protect the rights and freedoms of cannabis consumers through the exercise of the right to freedom of association. This analysis provides a framework for testing the boundaries of the right to privacy in the context of drug laws in the final section of this article.
V. THE EMERGENCE OF CANNABIS ASSOCIATIONS AND THEIR EVOLUTION INTO CANNABIS CLUBS
The birth of Spain's cannabis activism and the widespread establishment of cannabis consumer associations and clubs are best described as civil society's response to the perceived need to protect the rights and freedoms of cannabis consumers and their right to recreational drug use in a social context.Footnote 66 Cannabis consumers perceived the administrative penalties introduced by the ‘Corcuera law’ as an unacceptable infringement on their personal freedom. Whilst administrative penalties do not carry the same social stigma or risk of imprisonment as a criminal offence, they make it difficult for cannabis consumers to consume cannabis in a social context, as they would be unable to transport the substance in public without risking administrative fines.
Section 22 of the Spanish Constitution protects the right to freedom of association as a fundamental right. Law 1/2002 on Regulation of the Right to Association provides regulations for not-for-profit associations, which represent one of several means of exercising the right to freedom of association under Spanish law.Footnote 67 The preamble to Law 1/2002 acknowledges the importance of the freedom of association in the legal traditions of Spain and the European Union and of the vital role played by associations in preserving democracy by enabling individuals to share their convictions, actively pursue their ideals, ensure that their voices and opinions are heard and exert influence and provoke social changes by representing the interests of citizens to public authorities. Associations constitute legal entities consisting of three or more people with shared interests. Associations must have constitutions that set out the basis upon which they operate and their communal objectives. These constitutions must be democratic and provide for the holding of a general assembly at least once per year. Any and all monies generated by the association must be used to further the objectives of the association. An association must be listed in a public register, and the registration must include a copy of its constitution. Associations that pursue criminal activities are illegal, and secret associations and those of a paramilitary character are prohibited. Associations may only be dissolved or have their activities suspended by virtue of a court order stating the reasons for dissolution.Footnote 68
At the general assembly of Association Ramón Santos of Cannabis Studies (ARSEC) in 1993, some 150 members debated and agreed to cultivate cannabis for their collective consumption. Their crop was impounded by the police, and the four governing members of the association charged with drug trafficking in contravention of Article 368. The case was tried by the provincial court of Tarragona, and the defendants were acquitted of all charges, as the court concluded that no criminal law had been breached because the cultivation was intended for their own personal consumption. The prosecution appealed the decision to the Supreme Court under Article 849 of the Criminal Procedure Law (Ley de Enjuiciamiento Criminal), which permits appeals on the basis of allegedly incorrect applications of the law to the proven facts. The Supreme Court (1997) overturned the first instance decision and convicted the defendants on the basis that any unauthorized cultivation of cannabis necessarily endangered public health.Footnote 69 The decision in the ARSEC case was considered aberrant by legal commentators because of a number of earlier decisions by the Supreme Court indicating that cultivation was not a criminal offence when the purpose of the cultivation was personal consumption.Footnote 70 The decision did not amount to binding precedent and was largely ignored by the lower courts. The ARSEC case was the last of its kind to be heard in the Supreme Court until 2015, as changes to judicial procedure restricted the appellate jurisdiction of the Supreme Court to offences for which the maximum sentence was five years or more. Criminal prosecutions for cannabis cultivation were thenceforth decided by single judges and the regional courts of the 50 provinces of Spain, which exercise criminal jurisdiction for offences in which the maximum penalty does not exceed five years. In the exercise of their criminal jurisdiction, the provincial courts act as both trial courts and appellate courts.Footnote 71 During the interim period of almost 20 years between the first appeal to the Supreme Court concerning an association of cannabis consumers in 1997 and the second in 2015, a synthesis of developments in the social, judicial and local political spheres resulted in a dramatic proliferation of cannabis social clubs throughout Spain and their firm entrenchment in the social fabric of at least Catalonia and the Basque country.Footnote 72
The number of associations in Spain rose to approximately 1,000 by 2015, some of which had several thousand members, and many subscribed to the detailed self-regulation promulgated by federations of cannabis associations.Footnote 73 Amongst the objectives listed in the constitutions of several associations is the provision of a private space for the exercise of members’ rights to autonomy over their mind and body, dignity and the free development of their personality.Footnote 74 The associations rented premises for members to congregate and socialize (private members’ clubs) and obtained licenses from municipal authorities regarding compliance with fire safety, smoke evacuation and other public health regulations for their activities, which include the distribution and consumption of cannabis cultivated on behalf of the members. The clubs operate very much like bars or cafes in terms of the provision of social spaces, cultural entertainment, refreshments, Wi-Fi and work spaces, but their legal identity is distinguished by their private membership, democratic method of management, not-for-profit status and by the provision of cannabis for consumption on the premises.Footnote 75
VI. THE CANNABIS CLUBS: DRUG TRAFFICKING OR PERSONAL (SHARED) CONSUMPTION?
Regional prosecutions of governing members of cannabis associations attracted criticism from several quarters, including the Ombudsman of the Basque country.Footnote 76 The consensus of opinion in legal journals was that the cannabis clubs were not in breach of the criminal law.Footnote 77 The vast majority of criminal investigations into cannabis associations throughout the country between 1999 and 2015 resulted in stays of proceedings or acquittals by both judges at first instance and provincial courts.Footnote 78 In terms of jurisprudential doctrine, the majority of the judgments went no further than noting that the conduct complained of came within the ambit of the Supreme Court's doctrine on shared consumption. One notable exception is a judgment by the Audiencia Provincial of Palma de Mallorca (henceforth the Audiencia) in 2014 in an appeal by the prosecution against the decision by a first instance judge in Ibiza acquitting the defendants of drug trafficking for their operation of a cannabis club.Footnote 79 In their grounds of appeal, the prosecution argued that the doctrine of shared consumption was not applicable to cannabis associations. The case is notable because the Audiencia recognized that the doctrine of shared consumption was in practice no more than a tool for ensuring that only conduct that endangers public health is criminalized.
The Audiencia noted that the Supreme Court's shared consumption doctrine had undergone a process of amplification over the years but that its core requirements were that (i) the collective consumption must take place out of public sight in order to avoid drug diffusion amongst third parties; (ii) the amount of the drug involved must be consistent with personal and occasional consumption; (iii) the collective must be a small nucleus of individually identifiable drug users; and (iv) the drug must be for immediate consumption. The final requirement, namely, that the people with whom the drug is shared must be addicts, had been relaxed by the Supreme Court to include people who habitually consume drugs on weekends or special occasions such as parties and celebrations. The first four requirements are designed to ensure that there is no risk of the drug going beyond the intended recipients or encouraging others to consume drugs; the final requirement ensures that the recipient is not a member of the public who has been encouraged to consume drugs by the supplier but a person who is already a regular consumer at the time of being supplied.
According to the Audiencia, the key issue was whether the conduct of the defendants came within the shared consumption doctrine or within a variation of that doctrine that shared the same raison d’être. The Audiencia found that the cannabis association departed from the criteria established for the application of the shared consumption doctrine in two ways: (i) the shared consumption doctrine stipulates that the drug possessed is for immediate use, which is not the case for an unharvested cannabis crop; and (ii) the number of members in the association exceeded the number in cases heard by the Supreme Court (which were usually groups of three or four). However, in relation to the first point, the Audiencia noted that cultivation is a lengthy process that takes several months, so it is logical that the amounts possessed may exceed what might be consumed immediately. The Audiencia observed that it was unsurprising that cannabis consumers, wishing to avoid the black market, would resort to domestic cultivation, particularly given the ease with which the substance can be grown. With regard to the second point, the Audiencia emphasized that the issue in the case was whether the defendants had committed the offence of trafficking, which would entail the promotion, encouragement or facilitation of drug use by third parties. The court believed that this was a qualitative and not a quantitative question and that it would be unreasonable for criminality to hinge on the number of consumers. The Audiencia held that the activities of the association fell within the shared consumption doctrine established by the Supreme Court: collective cultivation does not threaten the objective of the criminal law on drug trafficking because such cultivation is for consumption by people who have voluntarily participated in the cultivation of their own accord.Footnote 80
The Audiencia upheld the decision of the court of first instance acquitting the defendants, and it gave the following reasons for why the prosecution had failed to prove the criminality of the conduct: (i) the explanations for the creation of the association were reasonable; the individuals had created a stable organization with an organized structure and corresponding articles of association to avoid accessing cannabis from the black market. Obtaining cannabis from the black market entails risks such as endangering their health with contaminated or adulterated substances; (ii) the amount and the identity of the people to whom the cannabis was supplied were documented in the association's paperwork, and the amount was limited to two grams per member per day, an amount that had been agreed upon by the board members of the association; (iii) there is no qualitative distinction between the operation of the association and the shared consumption doctrine of the Supreme Court; (iv) the association was a nonprofit, and the monies generated were re-invested in the association; (v) the activities of the association conformed to its articles of association; (vi) the shared consumption doctrine does not require those supplied to be drug addicts but regular drug users; the fact that those supplied voluntarily declared themselves to be consumers of cannabis sufficed for this purpose; (vii) the fact that the association could not guarantee that its members did not take their cannabis out of the club for subsequent consumption did not make its supply criminal because the amount supplied was limited to two grams per person, an amount that posed no threat to public health since such a small amount could not be used for trafficking; (viii) the four kilos of cannabis found on the association's premises was not a significant amount given that the association had 455 members; and (ix) there was no evidence that the association supplied people other than members. The Court concluded that in these circumstances, neither the supply nor the cultivation of the cannabis by association members amounted to a criminal offence.
In October 2014, the Anti-Drugs Prosecutor launched an offensive against cannabis associations. In his evidence to the Cortes Generales (the bicameral parliament), he argued that the shared consumption doctrine did not apply to cannabis associations, primarily due to their large membership, that the cannabis clubs were therefore criminal, and that the lower courts were incorrectly applying the law.Footnote 81 In 2013, the national prosecution service started adding the additional charge of membership in a criminal organization to prosecutions of people operating cannabis associations (increasing the maximum sentence from four to 10 years), thus making the decisions of provincial courts appealable to the Supreme Court.
In 2015, the Supreme Court made three rulings on prosecution appeals from acquittals by provincial courts in what will henceforth be referred to as the 2015 trio: the ‘Ebers case’,Footnote 82 the ‘Three Monkeys case’Footnote 83 and the ‘Pannagh case’.Footnote 84 These decisions are the Supreme Court's first authoritative pronouncements on the application of the criminal law to the organized system of collective cannabis cultivation, distribution and consumption in the form of cannabis associations and cannabis clubs in the 2000s, which had been sanctioned in multiple decisions by regional courts and even regulated by several municipalities. All three cases were appeals by the public prosecutor against regional court judgments in which the operators of cannabis associations were acquitted on the basis of an interpretation of the criminal law with which the national prosecutor disagreed. In all three cases, the Supreme Court decided that the defendants should have been convicted, but its consideration of the applicability of the shared consumption doctrine to cannabis clubs and the distinction between trafficking and shared consumption remained blurred. The judgments have not served to clarify the legal status of cannabis clubs or to stem the controversy and uncertainty surrounding them.Footnote 85
In the 2015 trio, the Supreme Court held that the provincial courts, albeit with good intentions, had stretched the doctrine of shared consumption to a breaking point.Footnote 86 Whilst it is theoretically possible for collective cultivation to operate beyond the reach of criminal law and within the doctrine of shared consumption, the Court thought that any permanent structure established for the distribution of successive cultivations to an open-ended number of members would likely be in breach of Article 368 and that the outcome of each case would depend upon its particular facts. Whilst the courts can provide indications and guidance in a given case, it is for the legislature alone to establish a list of requirements, the presence of which would deny the applicability of the offence and the absence of any of which would confirm its commission. The creation of such a list by the Court would shift the focus away from the real issue in each case, which is whether there has been an offence under Article 368. Article 368 criminalizes the promotion of consumption by others, and not the facilitation of personal consumption. Only forms of collective consumption that lack any structure for servicing third parties, akin to the facilitation of one's own consumption, are excluded from the scope of the criminal law.Footnote 87 A criminal offence will be committed when a system of cultivation, harvesting or acquisition of drugs is put in place with the objective of distributing it to third parties, even when those third parties have been incorporated within a list, club or association and where the distribution is carried out on a not-for-profit basis.Footnote 88 Profit is one of many indicators that a supply exceeds the bounds of shared consumption and suggests ‘otherness’ (alteridad), but the absence of profit does not in and of itself make the behaviour one of shared consumption.Footnote 89
Whilst the concept of ‘third parties’ (alteridad) was not clarified and remains controversial, the Court did provide the following indicators of non-criminal activity in the 2015 trio: a reduced number of people gathered together on an informal basis in a closed circle who know each other based on the links and relationships between them and who are familiar with each other's consumption habits to the extent that they can be more confident in their reasonable belief that the drug will not be redistributed or commercialized outside of their circle than would be the case from the mere imposition of a formal obligation for this not to happen.Footnote 90 Other factors include the absence of any commercial spirit or profit and the absolute spontaneity and free, voluntary and informed nature of the decision of those who group together for this purpose, which in itself excludes the inclusion of underage individuals.Footnote 91
The dissenting opinion in the Ebers case (4 out of 15 judges) disagreed with the majority's refusal to elaborate further on the criteria for establishing what conduct is outside the scope of Article 368: ‘on the contrary, we believe it is our function to provide clear and assertive criteria to set the meaning of the law, and we believe that in order to do this, we need to depart from the doctrine of shared consumption and adapt it to this social modality of consumption, signposting the circumstances in which it would be outside the scope of the criminal law by the means that least endanger liberty’.Footnote 92 The minority opined that the majority's refusal to elaborate on the criteria meant that the judgment failed to address the matter brought to it for resolution with clarity and instead perpetuated the uncertainty surrounding the conduct of associations of cannabis consumers and thus facilitated arbitrary law enforcement. The minority elaborated on the criteria that associations should comply with in order to remain outside the criminal concept of ‘trafficking’, and in doing so, like the majority, its focus is on identifying what would and what would not endanger public health. In the minority's opinion, public health endangerment would be avoided when membership is restricted to adult and habitual consumers (in full possession of their self-governing faculties and already dedicated cannabis consumers) including approximately 30 people (in order to ensure that they are known to each other and fixed in number), and their conduct takes place on private premises (to avoid encouraging others).
Legal scholar Juan Muñoz Sánchez is the most prolific critic of the majority judgments and argues that the proven facts did not amount to endangerment of public health because the association's supply was restricted to club members and there was no evidence of diversion to third parties, a category in which Muñoz claims it would be absurd to include private members and adult consumers of cannabis who have personally requested that cannabis be cultivated on their behalf.Footnote 93 Muñoz purports to agree with the Supreme Court's interpretation of the law but to disagree with its application of the law to the facts. Muñoz agrees that the essence of the criminal offence is the endangerment of public health and that it is in the absence of such endangerment that no criminal offence will have been committed. Thus, Muñoz's critique is not normative but is restricted to debating the endangerment of the legal good protected. After emphasizing the lack of any evidence suggesting that anyone other than members of the association was provided cannabis, Muñoz elaborates on his reasons for disagreeing with the Court's finding of endangerment to public health by critiquing each of the three elements of the factual matrix in this case that the Court treats as indicative of public health endangerment:
1. The inability of the association to control the risk of diversion of the drug to third parties, including the risk of members providing the amounts supplied by the association to them to others
Muñoz takes issue with the relevance of the risk of members providing third parties with the cannabis on the basis that the amount supplied to each member is below the threshold amount stipulated in Spanish jurisprudence for personal consumption. Muñoz asserts that the cultivation or storage of large amounts is insufficient in and of itself to amount to endangerment. He supports his analysis of the level of risk thereby created by pointing to the existence of opium plantations authorized by Spain's Ministry of Health and Consumer Affairs. He concludes that the risk must therefore reside not in the fact of the existence of a plantation or by the size of the amount stored, but in the measures of control applied to securing them against public access.Footnote 94 Although not pursued by Muñoz, the analogy he draws with national control measures for authorized production suggests a potential alternative source for the identification of public health endangerment, which is the international drug conventions themselves, as it is these conventions that guide the national control measures applied. The conventions provide detailed control measures for the production and manufacture of scheduled substances for medical and scientific purposes. Article 22 of the Single Convention on Narcotic Drugs, 1961 provides that the only circumstances in which a party is obliged to institute an outright prohibition on the cultivation of cannabis otherwise authorized by the State is where the prevailing conditions in the country or the territory of a party to the convention are such that it would be the most suitable measure, in the opinion of that country, for protecting the public health and welfare and preventing the diversion of drugs into illicit traffic. The UN's official Commentary on the Single Convention on Narcotic Drugs, 1961 suggests that this judgment is one for the individual party to make, but it envisages it being made in a case in which the Government reaches the conclusion that ‘it cannot possibly suppress a significant diversion into the illegal traffic without prohibiting the cultivation of the plant’.Footnote 95 The commentary elaborates on when this is likely to be the case:
Any diversion is likely to cause harm to the health of human beings, but cultivation must be prohibited only if it is also necessary ‘for protecting the public health and welfare’. The additional condition appears to indicate that the authors of Article 22 did not consider that any diversion whatsoever constitutes ipso facto a problem of public health and welfare, including that of other countries, but only one which is sufficiently large to present such a problem. A Party is therefore not bound to prohibit cultivation if the drug in question is diverted only in relatively minor quantities.Footnote 96
Whilst Article 22 only applies to cannabis cultivation authorized for medical or scientific purposes, its objective is the same as that of Spain's Supreme Court in ensuring that cultivation is prohibited (in this case by the criminal law) whenever public health is endangered. The divergence in approaches between the UN commentary and Spain's Supreme Court highlights the limitations of public health endangerment as a normative concept.
2. The establishment by an association of an institutionalized and permanent structure to supply cannabis to an indeterminate membership (due to it being open to additional members on an indiscriminate basis) is likely in itself to endanger public health, and the supply of cannabis to the members of such a body will thereby represent supply to third parties and thereby amount to a criminal offence
Muñoz's first point of disagreement is with the Court's description of the membership approval process as indiscriminate, given that members must satisfy various criteria stipulated by the association, including affirmation by the applicant that they are already a regular consumer of cannabis and willing to comply with the rules of the association and to provide identity documents. Muñoz observes that openness to additional membership is integral to an association based on the shared interests of its membership body. However, Muñoz does not make this argument in order to bring the right of association into play in his critique; instead, he does so to emphasize the normality of the conduct in question. Finally, Muñoz takes issue with the Court's suggestion that given the aforementioned characteristics of the association, supplying members is akin to supplying third parties. Muñoz disputes this characterization on the basis that (i) the members are adult consumers of cannabis who have personally requested that cannabis be cultivated on their behalf and have stipulated monthly quotas when doing so, and (ii) the association has a way to verify their identity. Héctor Brotons Albert (Brotons) also criticizes the Supreme Court for deprecating the importance of the right to association by failing to evaluate the functioning of the associations in accordance with their registered constitution and the democratic mechanisms prescribed in Law 1/2002 on the Regulation of the Right to Association.Footnote 97 Brotons does not highlight the law regarding associations in order to suggest any breach of the right to association but to explain the Court's ‘confusing’ equating of members with third parties for its failure to examine this aspect of the association's conduct.
Neither scholar addresses the Court's discomfort with the continuous and permanent nature of the cannabis supply system established by the associations, although it seems to me that it is this characteristic of the cannabis clubs that most markedly distinguishes them from the informal circumstances of social supply to which the doctrine of shared consumption continues to be applied. It seems that the Court's discomfort with the permanent structure and its reluctance to provide clear guidance or criteria for distinguishing between collective cannabis cultivation that is criminal and cultivation that is not is best understood with reference to the principal objectives of the drug conventions. The principal objectives of the drug conventions are generally understood to include limiting scheduled drug use to medical and scientific purposes.Footnote 98 The general consensus, even amongst advocates of drug reform, is that any formal regulation of recreational cannabis supply would be a breach.Footnote 99 The preoccupation of Spain's Supreme Court with convention compliance is evident from its citation of the treaties and quotation of Article 3(1)(a) of the 1988 Convention regarding the conduct a country is obliged to criminalize. The Court did not quote the exceptions for such conduct in Article 3(2) where it relates to personal consumption. The Court also did not note that Parliament had relied upon this exception in its decision to except personal consumption from the remit of the criminal law. Indeed, the author has been unable to locate any reference to this in any of the drugs literature on Spain. The provision of detailed criteria regarding the distinction between criminal and non-criminal collective cannabis cultivation would not amount to regulation of its supply as long as the criteria provided a means to provide much-needed clarification of the distinction between ‘personal consumption’ and ‘drug trafficking’ in national law.
3. The large number of members inscribed (290 persons)
Muñoz asserts that the question of whether or not public health has been endangered is not of a quantitative nature. A similar opinion was expressed in Judge Ferrer's dissenting opinion in a later similar decision on a cannabis association by the Supreme Court in 2016.Footnote 100 Both Muñoz and Ferrer emphasize the absence of public health endangerment when the supply is for a membership body comprised of adults in full possession of their self-governing faculties.
Whilst noting the leeway provided to nation States in terms of how narrowly or expansively they define personal consumption in their national legislation, Spain's Supreme Court expressed concern that interpreting Spain's concept of personal consumption sufficiently widely to embrace a cannabis association that supplies several hundred members would amount to such an extreme departure from the traditional perspective regarding the concept of personal consumption that a preliminary ruling would first need to be sought from the Court of Justice of the European Union owing to this interpretation's doubtful compatibility with European norms.Footnote 101
It is unfortunate that Spain's Supreme Court did not seek a preliminary ruling on this question because it is in fact far from clear that a broad definition of personal use would constitute an extreme departure from international or European norms, and it is arguable whether any such departure might in any event be justified on the basis of the rights enshrined in human rights instruments. It is beyond the scope of this article to explore the breadth and range of national definitions; however, for the present purposes, Spain is not alone in its including shared consumption (at least amongst a small number of friends) within the scope of personal consumption, and it is also not alone in doing so on the grounds that such conduct does not pose a significant threat to public health.Footnote 102
VII. THE LIMITATIONS OF SPAIN'S PUBLIC HEALTH FRAMEWORK
Spain's application of the doctrine of legal goods reframes the distinction between ‘trafficking’ and ‘personal consumption’ as a distinction between conduct that endangers public health and conduct that does not. Spain's Supreme Court developed the shared consumption doctrine as a tool to further refine this distinction. The weakness of the doctrine is that both the majority and the minority in the Supreme Court and the principal critic of the majority decisions all focus exclusively on the presence or absence of public health endangerment and reach different conclusions. The practical and theoretical limitations of using the abstract concept of public health endangerment as the sole yardstick for determining the criminality of drug-related conduct have been illustrated by our analysis of the normative framework of cannabis clubs in Spain and the continued ambiguity surrounding their legal status. Criminal Law, Philosophy and Public Health Practice marks an important contribution to the literature on public health protection in criminal law. Its contributors seek to provide a varied examination of the conceptual, normative and practical implications of protecting public health through criminal law.Footnote 103 Several contributors to the volume explore the distinction between public and private from a deontological perspective. As Damon Barrett has noted, drawing a distinction between a human rights framework and a public health framework is not to suggest that the relationship between them is antagonistic, in fact far from it.Footnote 104 The two can complement each other in tailoring legislative responses. The status of the cannabis club model is uncertain in Spanish law because of the intractability of drawing clear boundaries around public health. Lawyer and legal scholar Héctor Brotons Albert is exceptional in criticizing the trio for failing to take the constitutional issue of human rights into account in reaching its decision and for seeking instead to examine the issue of public health endangerment in a normative vacuum and without examination of the individual rights affected and the application of the proportionality test in relation to their breach.Footnote 105
The next section turns to the growing body of comparative constitutional law in which recreational drug use is acknowledged as falling within the constitutionally protected realms of privacy and autonomy.
VIII. PENAL PROVISIONS ON DRUGS IN THE HUMAN RIGHTS FRAMEWORK
In comparative constitutional case law, the freedom to consume cannabis without State interference has been consistently situated within the right to privacy and associated personality rights, the objective of which is the protection of personal autonomy. The courts have reasoned that the right is exercised by the consumption of substances that produce experiences that in some way affect the user's thoughts, emotions and/or feelings, which are indeed amongst the most personal and intimate of activities.Footnote 106 The crucial question under a human rights framework is the extent to which legal measures that interfere with autonomy (privacy/free development of the personality) can be justified as a proportionate means of achieving a legitimate objective. The four stages of the justifiability test are (i) the legitimate goal stage, the purpose of which is to exclude impermissible goals such as perfectionism,Footnote 107 (ii) the suitability or rational connection, which assess the suitability of the means for achieving the goal, (iii) the necessity test, which asks whether there is a less restrictive but equally effective means of achieving the goal, and (iv) the balancing stage, which involves striking a fair balance between the rights of the individual and the interests of the community.
Recent decisions by the Supreme Court of Mexico (first chamber)Footnote 108 and the Western Cape Division of the High Court of South AfricaFootnote 109 are particularly noteworthy owing to the rigour with which these courts applied the proportionality test. In the Mexican case, the Court first established that a protected interest had been engaged in the legislative measures pertaining to drug use before proceeding to the legitimate goal stage. It identified the protection of public health and public order as the legitimate aims. The Court then proceeded to the suitability or rational connection stage, observing that the State's measure would satisfy this test if the measure could be shown to contribute to any degree to the legitimate purpose sought by the legislature.Footnote 110 Interestingly, the Court stated that the impact of the policy on the number of people consuming drugs was not the relevant question; the questions that needed to be asked were (i) what harm the consumption of cannabis posed to public health and public order, and (ii) whether these harms were minimized by the measure. The Court found that the consumption of cannabis (i) by drivers increased the probability of vehicular accidents and consumption amongst people more generally and (ii) did pose a risk to the health of consumers, but not an important risk since its permanent consequences are ‘unlikely, minimum or reversible’. The Court concluded that there was a rational connection between the measure and the legitimate goal in relation to (i) only. At the necessity stage, the court noted that the measure had not reduced the number of consumers and had not therefore decreased the harms related to its consumption. It noted that in relation to the effects on the health of consumers, educational and health measures as well as advertising prohibitions would provide adequate alternative measures, and it noted that legal measures should discourage consumption in specific circumstances, such as while driving.Footnote 111 The Court then moved on to the final balancing stage and concluded that the measure was disproportionate.Footnote 112
A similar exercise and outcome more recently occurred in Prince and others in the Western Cape Division of the High Court of South Africa.Footnote 113 Having acknowledged the intrusion on the right to privacy by drug offences, the Court ruled that the dispute would have to be determined in terms of the justification for the limitation on privacy, with the burden resting on the State. The factors for consideration at this stage are set out in section 36 of the South African Constitution, and they are similar to those of the justifiability test outlined above: (i) the nature of the right, (ii) the importance of the limitation's purpose, (iii) the nature and extent of the limitation, (iv) the relation between the limitation and its purpose, and (v) the availability of less restrictive means to achieve this purpose. The Court observed that this limitation analysis ‘should be conducted through the prism of a court's reading of the animating normative framework … in light of the values which underlie an open and democratic society based on human dignity, equality and freedom.’Footnote 114
The Court heard evidence on the harms from all parties and concluded that ‘the evidence as set out in this judgment supports the argument that the legislative response to personal consumption and use is disproportionate to the social problems caused as a result thereof’. The High Court accordingly ruled that the legislation needed to be amended to ensure that these provisions do not apply to those who use small quantities of cannabis for personal consumption in the privacy of one's home, as ‘the present position unjustifiably limits the right to privacy … The limitation on autonomy should in other words be narrowly tailored to achieve its purpose, […] it should be carefully focused or that it should not be overbroad.’Footnote 115 The High Court declared the legislative provisions in issue to be unconstitutional to the extent that they criminalized possession and cultivation of cannabis in private and for personal use. The High Court's declaration of invalidity was confirmed by the Constitutional Court of South Africa in 2018.Footnote 116
The human rights case law on personal consumption approaches the demarcation between drug trafficking and personal consumption from the opposite direction of the doctrine of legal goods by starting with the question of what is private or what restricts a person's autonomy. However, the case law goes no further than identifying the relevant right. The focus of the opinions is on the extent to which interference with the right is justified. In other words, we are back to evaluating the endangerment to public health, albeit in a more nuanced and structured manner. Although several of the constitutional cases specifically restrict the engagement of the privacy right to ‘personal consumption’, the actual scope of ‘personal consumption’ is not addressed, with one exception. In the decision by the Supreme Court of Chile on the concept of personal consumption (enshrined in the statutory exception to the commission of the offence), the Court held:
[the term] does not necessarily imply that the use or consumption of the substance obtained from the plant must be that of one sole individual, only that it is conducted solely and exclusively by the same people who sowed the seeds, planted, cultivated or harvested the plant that produced it, excluding thereby the use or consumption of third parties or others distant from such actions.Footnote 117
The Chilean Court's interpretation of the statutory term is not based on any normative analysis of the scope of privacy, however, and it is only by exploring the scope of privacy that we can begin to sketch out the contours of a normative conception of personal consumption.
IX. TOWARDS A NORMATIVE CONCEPTION OF PERSONAL CONSUMPTION
The concept of privacy in Article 8 of the European Convention on Human Rights (ECHR) includes the right to establish and maintain relations with other human beings for the fulfilment of one's personality, and this extends to the right of association:
The Court reiterates that ‘private life’ is a broad term encompassing the sphere of personal autonomy within which everyone can freely pursue the development and fulfilment of his or her personality and to establish and develop relationships with other persons and the outside.Footnote 118
In Niemitz v Germany, the European Court of Human Rights stated:
The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of ‘private life’. However, it would be too restrictive to limit the notion to an ‘inner circle’ in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.Footnote 119
The North American theorist Bloustein proposed an explicit link between individual privacy and the right of association. ‘The right to be let alone,’ he asserts, ‘protects the integrity and dignity of the individual. The right to associate with others in confidence – the right of privacy in one's associations – assures the success and integrity of the group purpose.’ He explains that:
[g]roup privacy is an extension of individual privacy. The interest protected by group privacy is the desire and need of people to come together, to exchange information, share feelings, make plans and act in concert to attain their objectives …, group privacy protects people's outer space rather than their inner space, their gregarious nature rather than their desire for complete seclusion.Footnote 120
If we are to define ‘personal consumption’ is defined as everything that pertains to the constitutionally protected realm of the private, it is at least arguable that it should include collective cultivation and consumption by consumers in private.
X. CONCLUSION
The ambiguity surrounding the meaning of ‘personal consumption’ in the international conventions on drug control and in national legal systems is best decided within a human rights framework, particularly given the acknowledgement that constitutional principles are engaged by the term in the 1988 Convention. By examining the case law from Spain, we can see that the normative strength of the Spanish public health framework is that it excludes conduct that has no harmful impact on people other than those engaged in it, and therefore, despite being an application of the continental doctrine of legal goods, the analysis is aligned with the objectives of the normative and liberal Anglo–American harm principle. Its weakness is that the law is uncertain and remains vulnerable to the same criticisms that have plagued the harm principle, primarily the perennial question of what can be said to constitute a harm (or in the Spanish context, what can be said to be harmful to public health).Footnote 121
Whilst the application of human rights law to the recreational use of drugs remains controversial,Footnote 122 and there is still much to be resolved in the application of human rights law to recreational drug use, recent decisions by the Supreme Court of Mexico and the High Court of South Africa represent important advances because of their rigorous application of the proportionality principle to legislative measures prohibiting drug use. The strength of the human rights framework is that it lends itself to a more nuanced approach, whereby both the public health impact and the intrusion into privacy can be examined in tandem and the proportionality test applied to ensure that legislative measures achieve the correct balance between the two. Whilst the case-law suggests that the decision of whether to consume drugs is a deeply personal one, the question of whether the same can be said of an organized system of collective cultivation and consumption is more complex. A review of the constitutional case law has identified autonomy as the value endangered and privacy as the right engaged to protect it. A brief analysis of the case law and the theoretical literature on the scope of privacy more generally suggests that the right to privacy does include social or ‘group’ privacy and that drug consumption in a social context can in certain circumstances fall within the constitutionally protected realm of private life. This could result in a broad conception of ‘personal consumption’ capable of embracing Spain's cannabis clubs.
