INTRODUCTION
Together with large scale migration of people, the fight against drug trafficking can be considered one of the greatest challenges that states currently face when coordinating action. This challenge is not alien to the Latin American region which, as a producer and ‘leader’ in the trafficking of narcotics, faces enormous challenges at both the social and legal levels.
The research in, and the production of, information on the subject is no stranger to these challenges. This is particularly true in a region characterized by a shared language but with enormous linguistic differences in terms of common denominations and legal technical denominations. Research in comparative and foreign law in this subject represents a problem, even for those whose Spanish is their first language.
The differences in the assumptions about what is considered to be criminalized, the different denominations of criminal cases and the dissemination of the information in terms of the enormous amounts of laws and reforms, constitute a host of severe obstacles to foreign and comparative research.
This article seeks to present the main legal tools, both local and international, needed for the research in international and comparative law. It also aims to draw attention to some of the problems that arise when investigating the topic of drug trafficking in general. In particular, this article will address the issue of personal use and minimum dosage.
INTERNATIONAL INSTRUMENTS OF INTEREST FOR THE FIGHT AGAINST DRUG TRAFFICKING
With reference to the global pattern of drug trafficking, we begin by describing the applicable international legislation on the subject taking into account the history of its development.
On the one hand, the emergence of international treaties on the subject can be thought of as a response that was directly related to the phenomenon of drug trafficking and its transnational nature. On the other hand, it is interesting to analyze how these treaties and conventions impacted local legislation. On this aspect, as will be seen, in some cases a larger national legislation was forthcoming as a result of a country signing up to some of these treatiesFootnote 1.
From the beginning of the 20th century it is possible to find the first international documents that relate to drug trafficking. In 1912, Germany, the United States, China, France, the United Kingdom, Italy, Japan, the Netherlands, Persia, Portugal, Russia and Siam signed the International Opium ConventionFootnote 2 in The Hague. The document was drafted within the framework of the International Opium Commission and no Latin American country participated in it. Among its provisions were the gradual and effective abolition of manufacturing, domestic trade and the use of opium, as well as the limitation of the manufacture, sale and use of morphine, heroin and cocaine.
In 1925, a new treaty on OpiumFootnote 3 was signed in Geneva. With this opportunity, there was participation by countries of the American continent. Among these were Brazil, Chile, Cuba, Nicaragua and Uruguay. Under this treaty the application to Indian hemp was extended; defined as the flowers of the female plants of the cannabis sativa and its resin (known as hashish). Also, at this time, regional legislation emerged and in very limited cases concerned the sale of narcotics and alkaloids (for example, Argentina, 1924, law No. 11.309Footnote 4), the treatment of drug addicts (Mexico, 1931, Federal Regulation of Drug AddictionFootnote 5) and the trade in coca, opium, morphine and cocaine (Uruguay, 1937, law 9.692Footnote 6)Footnote 7.
After these came the Convention for Limiting the Manufacture and Regulation of the Distribution of Narcotic Drugs (1931)Footnote 8, the Agreement for the Control of Opium Smoking in the Far East (1931)Footnote 9, the Convention for the Suppression of the Illicit Traffic in Dangerous Drugs (1936)Footnote 10, the Lake Success Protocol (1946)Footnote 11, the Paris Protocol (1948) and the New York Opium Protocol (1953)Footnote 12.
After World War II and once the United Nations was formed, the Single Convention on Narcotic DrugsFootnote 13 was signed in 1961. This convention was amended by a 1972 ProtocolFootnote 14. It should be noted that among the list of substances defined for the control of cultivation, was the coca leaf and cannabis.
In 1971 the Convention on Psychotropic SubstancesFootnote 15 was signed and, in 1988, so was the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic SubstancesFootnote 16. Both treaties were framed in the so-called ‘war against drugs’. It has been in this social context that most of the regional legislations (many of them still in force) had a greater success in the amount of prosecuted behaviours and the increase in their sentences. Amphetamines, barbiturates and psychedelic drugs were introduced to the list. Also, the provision of Article 3.2 stands out:
Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention.
In this framework there are four agencies within the United Nations which work to enforce the treaties: the Commission on Narcotic Drugs (CND)Footnote 17, part of the UN Economic and Social Council (ECOSOC)Footnote 18; The International Narcotics Control Board (INCB)Footnote 19; the Commission on Crime Prevention and Criminal JusticeFootnote 20 (also under the scope of the UN Economic and Social Council) and the United Nations Office on Drugs and Crime (UNODC)Footnote 21. The World Health Organization (WHO)Footnote 22 also intervenes indirectly. Finally, it is worth mentioning the different publications that these organisations issue. As an example, the UNODC publishes global reports on drugs regarding consumption, trade and its relationship with social and economic developmentFootnote 23.
REGIONAL INSTRUMENTS ABOUT DRUG TRAFFICKING (LATIN AMERICA)
Within the framework of the Organization of American States (OAS) is the Inter-American Drug Abuse Control Commission (CICAD)Footnote 24. This Commission was established in 1986 and has the Inter-American Observatory on Drugs (OID)Footnote 25 as a statistical, information and research branch. In 2010, CICAD approved the Hemispheric Drug StrategyFootnote 26. Among its aims are to ‘Promote the harmonization of national legal norms, regulations and internal procedures in order to implement hemispheric judicial cooperation mechanisms and mutual legal assistance in connection with drug trafficking and related crimes’ (49th principle). In relation to consumption, this document establishes that the ‘Demand reduction is a priority component in guaranteeing a comprehensive, balanced approach to the world drug problem, given that the abuse of drugs is a social and health problem that requires a multisector and multidisciplinary approach’ (14th principle).
Likewise, in the Central American region, Guatemala, Honduras, Costa Rica, El Salvador, Nicaragua and Panama, have been members of the Permanent Central American Commission for the Eradication of Production, Trafficking, Consumption and Illicit Use of Narcotic Drugs and Psychotropic Substances and Related Offenses (CCP)Footnote 27 since the year 1993. The purpose of these bodies in connection with the criminalization of personal consumption is obvious. As background to the formation of this commission it is also important to take into account the Inter-American Program of Action of Rio de Janeiro against the Illicit Use and Production of Narcotic Drugs and Psychotropic Substances and Traffic ThereinFootnote 28 in 1986.
A relevant precedent which is directly related to the production of narcotics - in particular cocaine - is the Anti-Illicit Drugs Program in the Andean Community (PRADICAN Project)Footnote 29. This program began in 2009 and announced its completion by February 2013. Its integration took into account the concentration of cocaine producers in the Andean region. In this way, with the support of the European Union, Bolivia, Colombia, Ecuador and Peru, it united this community of countries.
Finally, there is a framework that extends beyond the regional one, which is the Cooperation Program between Latin America, the Caribbean and the European Union on Drugs PoliciesFootnote 30. This program is made up of different national commissions, directions, ministries, secretariats and councils of the countries involved. Some of these countries are Argentina, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Spain, Mexico, Peru, Portugal, Uruguay, Venezuela and Germany. Finally, as with the World Health Organization, there is the Pan-American Health Organization (PAHO)Footnote 31 which acts at a regional level.
THE PERSONAL CONSUMPTION OF DRUGS IN LATIN AMERICAN COUNTRIES – THE MINIMUM DOSE
Since the signing of the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, there has been the largest increase in the criminalization of narcotics production and consumption in the countries of the Latin American region in the history of the war on drugs. Beyond the constitutional compatibilities of criminal policy on prosecution - even indicated in this international instrument - in many cases it has been the jurisprudence that establishes limits to this prosecution of personal consumption with respect to what is known as the ‘reserve sphere’; which is directly related to the right to privacy and the protection of personal drug consumption under this principle.
This aspect presents two issues. As a starting point, it implies that local legislation did not consider the protection of the right of privacy through the protection of the private sphere or space as a legal place to personal consumption; that was left to the judges' interpretation when deciding cases relating to drugs. This, in a region where judicial precedent is not mandatory, constitutes the vagaries of the different interpretations of the right to privacy and the variable weighting of legal rights.
It should be noted that, beyond the provisions of Article 3.2 in relation to constitutional compatibilities, this provision of the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances sought the criminalization of the possession, purchase or cultivation of narcotic drugs for personal consumption. Certainly, at this point, the private sphere and the individual autonomy are affected. As a pillar of the liberal constitutions, this private sphere is protected from any kind of state interference.
This principle has reference to article 5° of the French Declaration of the Rights of Man and the Citizen of 1789: ‘The Law has the right to forbid only those actions that are injurious to society. Nothing that is not forbidden by Law may be hindered, and not one may be compelled to do what the Law does not ordain’Footnote 32.
So, only actions that harm third parties can be criminalized. In this way, harm is a requirement for criminal prosecution while mere possession for personal consumption has no effect on society. A different position would imply adopting perfectionist, paternalistic or social defence argumentsFootnote 33.
We say perfectionist regarding an eventual ‘moral self-degradation’ that entails the consumption of narcotics; paternalistic about those consuming citizens that the state protects from possible physical and psychological damages caused by addiction; and social defence in relation to the protection of non-addicted individuals against the possible consequences of consumption and mere possessionFootnote 34.
However, in the understanding of a principle of harm that considers as ‘legal protected interests’ those whose injury is specified in a damaging attack on other people, the criminalization of personal consumption or mere possession for consumption under any of these three arguments, is not viable.
THE PARTICULAR SITUATION IN LOCAL LAW
In the same way that international regulations have been modified to adapt to the rapid changes in the criminal structures of drug trafficking, the legislation of each country has undergone, and continues to undergo, constant changes.
Although the criminal law has been the protagonist in the fight against the production, consumption and trafficking of narcotics, whether in the form of prison sentences or as an application of curative or educational security measures, local legislation or jurisprudence has also sought to protect the right to privacy by allowing possession for personal consumption either through legislative initiatives or judicial decisions.
This normative corpus and its multiple modifications over time, has generated a great disparity in the application of penalties by judges at the level of local jurisprudence for different criminal cases. In the case of possession for personal consumption, the determination of the penalty may depend in the first place on the criminal scales pre-established by the legislator for each of the actions that are likely to result in a criminal offence. And secondly, in other countries the judge must measure the sanction that, in the particular case, is considered adequate. In the first case, the legislation allows judges a greater discretion in determining the applicable sanction (or dismissal) in cases of personal consumption.
Thus, in comparative law it is noted that, since the legislative predetermination is established within the issues that determine the penalty, the amount of controlled material sequestered is described as an objective criterion to be taken into account for the penalty to be imposed in each case (Jelsa, 2010).
This is clear, in principle, because of the difference necessary at the time of the typification between consumption (or possession) and traffic.
In Bolivia, for example, article 48 of Law 1.008 (1988)Footnote 35 sanctions trafficking of controlled substances (from 10 to 25 years) with imprisonment; constituting as an aggravating circumstance ‘the traffic of controlled substances in larger volumes’. However, despite the clear mention of the amount as a determinant of application of the aggravating circumstance, the law does not establish the difference between narcomenudistas (retailers) and major drug traffickers, so that, regardless of the volume of drug involved, the penalties range from 1 year for producers of controlled plants up to 25 years by traffickers.
In Brazil, Law 11.343Footnote 36 (National Institute of Public Policies on Drugs: 2006) does not offer a clear differentiation between traffic and consumption. This differentiation must be determined taking into account the quantity, nature (or quality) of the drug and other elements, such as the place and other objective circumstances, in addition to subjective, such as the existence of background, social and personal circumstances (as provided by article 28, § 2).
In Colombia, the National Statute of Narcotic Drugs (Law 30 of 1986)Footnote 37 in its assignment of penalties for drug-related offences contemplates a broader scale that is clearly determined by the amount of the substance. It describes in detail the quantities of seeds and plants of marijuana or any other plant from which cocaine, morphine, heroin or any other drug that creates dependence can be produced; the amounts in grams to be taken into account (differentiating each controlled substance) for the applicable penal scale.
The Mexican case is interesting because of the conceptual differentiation in the legislation between what they call narcomenudeo (retail) and narcomayoreo (wholesale) from the amounts sequestered of controlled substances. The amplitude of the scale is doubled or tripled by the jump between the first and the second figure, excluding from this differentiation the sowing, cultivation or harvest, a crime whose criminal scale remains the same regardless of the amount.
In 2003, Peru promulgated law 28.002 (2003)Footnote 38 that places greater emphasis on the determination of three figures based on the amount of material sequestered: the general crime of illicit drug trafficking, the figure of the micro-commercialization and possession for personal use. However, this law does not establish precise criteria for police action and ‘has left room for the discretionary action of the police, frequent cases of corruption and abuse against simple possessors for consumption’.
Paraguay, through article 30 of the Law 1.340 (1988)Footnote 39, exempted from punishment the possession of 2 grams of cocaine or heroin and 10 grams of marijuana for personal use. It also leaves open the possible use of medicinal cannabis ‘Whoever possesses substances referenced in this law, prescribed by a Doctor or whoever possesses them exclusively for personal consumption will be exempted from punishment. […] It will be considered of drug users’ exclusive personal use, the possession of substances amounting like a daily dosage as determined in each case by the Forensic Doctor […]’
In Chile, the Law 19.366, which punished the illicit trafficking of narcotic drugs or psychotropic substances, was superseded by Law 20.000 (2015)Footnote 40 which partially decriminalize the consumption and possession for personal use. It also introduced administrative sanctions instead of criminal punishment, except in the cases where drugs are consumed or possessed in public places or in groups.
Argentina maintains the criminalization of possession of narcotics for personal consumption. Through Article 14, paragraph 2 of Law 23.737 (1989)Footnote 41 penalties range from one month to two years in prison for anyone who has in his/her possession narcotics that ‘due to its small amount and other circumstances, unequivocally arises that the possession is for personal use.’ This provision has been declared both constitutional and unconstitutional on different occasions by the Argentinean Supreme Court of JusticeFootnote 42. In 2009, this provision was finally declared unconstitutionalFootnote 43. However, in the absence of clear criterion regarding the amount of narcotic drugs for personal consumption that would be protected by the National Constitution, the extension of its protection is still being discussed in the jurisprudenceFootnote 44.
Meanwhile, the Special Assembly which amended the constitution in Ecuador (2008) approved an amnesty for imprisoned ‘mules’ (drug couriers carrying less than 2 kilos), releasing 2,000–3,000 people incarcerated for drug trafficking. The new constitution was approved by referendum, and stated in its article 364 “[…] under no circumstance shall they [users of drugs] criminalized nor their constitutional rights violated”. In 2015, a new drug law was approved despite having several points that cause confusion between the authorities themselves and society in general. One of the main conflicts within the new law is that the table of maximum doses of consumption is contrasted with the table that regulates the doses that should be considered as drug trafficking. This means that a consumer can be confused with a micro trafficker and go to jail for up to three years, even though drug use and possession should not be penalized according to the constitution. With this framework, the Comprehensive Organic CodeFootnote 45 in Article 220 states that the possession of narcotic or psychotropic substances for personal use or consumption in the quantities allowed in the corresponding regulations will not be punishable. This rule was established in 2013 by the National Council for the Control of Narcotic and Psychotropic Substances (CONSEP) through a table that sets the maximum amounts for the carriage and personal consumption of alkaloids in Ecuador.
Finally, Uruguay has never criminalized possession for personal use. In fact, in December 2013, through Law no. 19.172,Footnote 46 the Uruguayan State assumed control and regulation of the activities of import, export, plantation, cultivation, harvest, production, acquisition of any title, storage, marketing and distribution of cannabis and its derivatives. Among its provisions, it allows domestic cultivation for personal consumption of up to six cannabis plants and its corresponding harvest with a maximum of 480 grams per year. On the other hand, the law indicates that the state can provide up to 40 grams of cannabis per month for non-medical use to those who require it. In this way, the norm considers a quantity destined for personal consumption of up to 40 grams of marijuana.
After this analysis as presented above, it is possible to conclude in general, that the local legislation and the jurisprudence of the countries analyzed are not aligned (perhaps, with the exception of those where consumption is not, or never was, criminalized), but are in a constant struggle between the fulfillment of international commitments regarding drug trafficking and the respect for individual freedoms.
This picture opens up a range of legislation that, despite the common principles they have at the international level, makes it very difficult to carry out research and subsequent analysis that allows for the criteria and results to be revealed in the fight against drugs and, in return, the respect for personal freedom.
In fact, all the countries surveyed were signatories to the 1971Footnote 47 and 1988Footnote 48 treaties, including those that do not criminalize consumption. A very clear contradiction. Therefore, international regulations might seem to maintain the aim of criminalization at all costs, losing sight of the complexity of the local debate surrounding the particular case of personal consumption and its relation to respect for privacy.
Annex 1
