Cannabis policy in Nicaragua: de facto decriminalization

Cannabis policy in Nicaragua: de facto decriminalization. By Elvin Rodríguez Fabilena

The present abstract is on the Nicaraguan cannabis policy contained in its national legislation. This research is theoretical and provides a qualitative approach regarding the legislation on cannabis in Nicaragua. The materials used were the Penal Code of Nicaragua (Law No. 641), the Penal Procedure Code of the Republic of Nicaragua (Law No. 406), the Law for the Prevention, Investigation and Prosecution of Organized Crime (Law No. 735), the Law of General Health (Law No. 423), the Law of Medicines and Pharmacies (Law No. 292), the Regulation of the Law No. 292 (Decree No. 6-99), and the Bachelor of Laws’ thesis entitled “Proposal of regulation of cannabis plant, as an alternative against drug trafficking and organized crime” by Jimmy Chang Antón and Elvin Rodríguez Fabilena. Such thesis contains an interview with the former Criminal Local Judge of León, Nicaragua, Mrs. Nardis Núñez, who provided an insight on how the authorities manage the cases of misdemeanors such as minor possession of narcotics, psychotropics and other controlled substances, specifically cannabis. 1.

The Nicaraguan legislation on cannabis.

1.1

Penal Code

The Penal Code of Nicaragua in its Title XIV, entitled “Crimes related to narcotics, psychotropics and other controlled substances”, lists 12 crimes which involve cannabis. Article 348 bans the illicit financing of narcotics and psychotropics, particularly the sowing,

cultivation,

harvesting,

storing,

traffic,

fabrication,

manufacturing,

transportation or commercialization of narcotics and psychotropics, or the seeds or plants from which they are extracted. The punishment is imprisonment of between ten to twenty five years, and a proportional fine from five to ten times the value of the activity funded. In addition, this article states that the same penalty will be imposed upon anyone who provides funds to rent, to build or to buy mobile or immobile goods for the same purpose. Moreover, Article 349 prohibits the production of narcotics and psychotropics. Anyone who, with the aim of exploitation or commerce, illicitly sows, cultivates, reaps plants or

seeds from which can be obtained such substances will be sentenced to prison for five to ten years, and assessed a fine of one hundred to one thousand days’ fine. A day fine is equal to the third part of the daily income of the person. Additionally, Article 351 bans the industrialization or illegal processing of narcotics and psychotropics, specifically by anyone who illicitly, through any procedure, industrial or craft, extracts, processes, transforms or modifies raw material to obtain narcotics and psychotropics. The penalty is prison for five to twenty years and from one hundred to one thousand days’ fine. Next, Article 352 prohibits the illegal transportation of narcotics and psychotropics, with a prison sentence of five to fifteen years, and from three hundred to one thousand days’ fine. Also, this article adds that it will impose the penalty of four to eight years of prison to anyone who prepares, hides, guides, keeps or maintains the means necessary commit this crime. When the transport is international, the penalty imposed will be from ten to twenty years of prison, and from five hundred to one thousand days’ fine. Article 353 bans the transfer of narcotics and psychotropics. Whoever transfers on his or her body, attached to him or her, or hidden in her or his clothing, narcotics and psychotropics, will incur a penalty of prison of between two to eight years. Article 354 prohibits the construction or facilitation of landing strips to be used in the traffic, transportation or transfer of narcotics and psychotropics with a penalty of between ten to twenty years of prison, and from three hundred to eight hundred days’ fine. Article 355 bans the storing of narcotics and psychotropics with the penalty of a prison sentence of between five and fifteen years, and from one hundred to one thousand days’ fine. Article 356 prohibits the promotion or encouragement of narcotics and psychotropics consumption by anyone who, through any means advertises, incites, or induces to others to consume narcotics and psychotropics, or offers or gifts them. The penalty will be from five to ten years of prison and from one hundred to five hundred days’ fine. Article 358 bans the possession or holding of narcotics and psychotropics in quantities above five grams and below twenty grams if it is marijuana. The penalty will be

imprisonment of between six months and three years, and from fifty days’ fine. If the seized substances exceed the limit of twenty grams of marijuana, the penalty to be imposed will be from three to eight years in prison, and from one hundred to three hundred days’ fine. Article 359 prohibits the traffic of narcotics and psychotropics by anyone who illicitly distributes, sells, barters, passes, offers for sale or in any other way trades narcotics and psychotropics, with prison of between five and fifteen years, and from three hundred to eight hundred days’ fine. The same penalty will be imposed on the owners, administrators, or any employee or anyone who delivers services to the establishment, who knowingly or who should know, and in a direct or indirect way, allows or facilitates the aforementioned behavior in their respective locales. When the traffic of these substances is at the international level, bringing them in, taking them out, or in transit in the national territory, a penalty will be imposed of ten to twenty years of prison, and from five hundred to one thousand days’ fine. Article 360 punishes the provocation, proposition or conspiracy, and states that “the proposition, provocation or conspiracy expressed by any means, to commit any of the crimes stated in this chapter, will be penalized with a penalty equivalent to the third part of the penalty stated for the crime which is proposed, provoked or conspired”. Additionally, Article 561 punishes the minor possession of narcotics and psychotropics in quantities below five grams of marijuana with seventy to one hundred days’ fine and community service of from thirty to sixty days of two hours every day. 1.2 Law for the Prevention, Investigation and Prosecution of Organized Crime. According to Article 3 of the Law 735 for the Prevention, Investigation and Prosecution of Organized Crime, all of the crimes stated from Article 358 to Article 360 of the Penal Code are organized crime, with the exception of the transfer of narcotics. Article 15 states that the State, through the Minister of the Health, should organize within the health system programs and opportunities for treatment and rehabilitation. The Ministry of Health should authorize and control all the opportunities, private or public, dedicated to the management, treatment, rehabilitation and social reintegration

of the addicted person. Also, according to this article, the Ministry of Health will send periodic reports on the rehab centers operating in the country to the National Council. In addition, Article 16 states that the National Penitentiary System will develop programs to prevent the consumption and trafficking of drugs within penal centers in order to facilitate to the addicted persons deprived of liberty rehabilitation treatment in coordination with the Ministry of Health and the specialized rehabilitation centers. Article 18 prohibits the utilization of plants of forbidden cultivation. Unless authorization expressed by the Ministry of Health in coordination with the Ministry of Agriculture and Forests, the sowing, cultivation, production, harvesting, exploitation and

trade of Cannabis Sativa L (marijuana in all its varieties) is prohibited. Also

prohibited is the possession, holding, storing and commerce of seeds with germinating capacity of cannabis, unless by authorization of the Ministry of Health. 2. The Nicaraguan cannabis policy: a de facto decriminalization for personal use. According to the Penal Procedure Code of the Republic of Nicaragua (Law No. 406), in its Article 325, which is about the accusation in case of misdemeanor, the victim, the administrative authority or the National Police, depending of the case, are authorized to present in a verbal or written way the accusation before the competent local judge. So, in case of the misdemeanor, the prosecutor is not competent to make the accusation. This is the reason why in this section of the abstract is included an interview with the competent local judge of León, Nicaragua, Mrs. Nardis Núñez. The interview is contained in the Thesis “Proposal of Regulation of Cannabis Plant in Nicaragua, as an alternative against drug trafficking and organized crime”, of which I am co-author. First of all, I asked the judge who presses the charges in the case of a misdemeanor related to narcotics, specifically, minor possession of marijuana. The judge answered that in such cases, the National Police should press charges. The prosecutor is an official of the National Police in cases of misdemeanor, but it is necessary to clarify that the law states that first, the National Police should try mediation. However, the National Police do not want to mediate in cases related to drugs, even though the case is minor possession of narcotics, which is by definition a misdemeanor, not a felony.

Then I asked the judge, what are the penalties upon people who commit misdemeanors related with minor possession of marijuana. The judge answered that the public interest is that the consumer get rid of the vice, so the penalties are community service and days’ fine. This service could be, for instance, caring for the plants at City Hall and the Health Centers, or according to the specific skills or occupation of each accused. The judge also said that in the previous Penal Code of 1974, the penalty established was prison, but she asked herself how the society benefits by imprisoning people. With the new Penal Code, which came into effect in 2008, the purpose was to reeducate the consumer, according to article 561. She also said that the accused can negotiate with the Police, mediate and achieve a compromise in a reasonable time. It is essential that the accused is interested in changing his or her behavior. Therefore, the accused can negotiate that he or she will commit to go to a rehab center. Also it is possible to offer other measures. The accused can plead guilty and negotiate to receive a minor punishment.

In addition, I asked the judge, that taking into account that there are misdemeanors related to minor possession of marijuana in the private homes of the detainees, whether she thinks that the National Police behave properly in these cases. The judge answered that the National Police violate a person’s right to privacy, constitutional rights such as the right to intimacy. She also mentioned that there are complaints before human rights organizations in case of raids without judicial orders and raids with judicial authorization occur when the police are aware that the person makes a practice of selling drugs. Police usually detain drug users when they have been found consuming drugs on the streets. In addition, I asked the judge what is the biggest obstacle to tackle in cases of minor possession. Her answer was that it is necessary to close the court case if the charge is not prosecuted. She also said that in some cases are closed because no charges are pressed within three months, or it could be that at the trial the witnesses do not come and it is necessary to absolve the accused of the charges. For instance, the court called the victim, that in these cases is the National Police on behalf of the society, and they do not come, so the default it is declared. This is special in cases of misdemeanor related to narcotics, psychotropics and other controlled substances. Such cases are a waste of time.

Even though the National Police detain the consumers because they to obtain information about where the consumers buy the drugs, they are breaking the law.

I also asked the judge if those accused of crimes of possession of marijuana are consumers or dealers. The judge answered that they are always consumers and that usually they are people with economic capability to purchase or store marijuana for their consumption for a longer time. The judge also said that trafficking could not be proven in those cases. She added that sometimes the people are found possessing more than five grams of marijuana, but maybe it is because it is their reserve for consumption and not because they are drug dealers. However, it is necessary to clarify that the drug dealers have diversified their ways of operation, in relation to the drug amount seized; as a consequence, the National Police cannot prove that they are drug dealers because they carry small quantities. The quantity itself is not an enough proof of trafficking.

I also asked the judge what she thought about the efficiency of the drug policy. She answered that when a person is processed for possession of marijuana it is a waste of time and resources. So, she said that is not worthwhile to imprison the person who is detained for minor possession of narcotics. She also said that this person should not be jailed before coming to trial. Misdemeanor charges involve more documents and are more tedious than charges of felonies. She said that it means more waste of paper and time. Misdemeanors are not penalized by time in prison. However, the National Police bring people arrested for misdemeanor offenses to prison pending trial, even though if convicted they would not face prison time. It is a State Policy directed by the National Police because of its preventive approach, in coordination with the interinstitutional of penal justice. Furthermore, I asked the judge if the misdemeanors related to minor possession of narcotics are committed violently. She answered that generally there is not violence in the commission of these misdemeanors. I also asked the judged if some of the accused have claimed to need the marijuana for medical purposes. The judge answered that nobody has made that claim, and also that medical use is not authorized by medical prescription or by the law.

In addition, I asked the judge what are the measures for recidivism in cases of misdemeanors related to narcotics. The judge answered that for consumers who are detained two or three times for the same misdemeanor, who are sent to health centers, but do not finish the treatment and leave before its completion, it is necessary to have the cooperation of their family, and especially that the consumer is interested in overcoming dependence on drugs. Moreover, I asked the judge what the arguments are from Prosecutors in cases of serious crimes and from the National Police in cases of misdemeanors, at the moment of arrest in these causes. The judge answered that those authorities claim Article 166 of the Criminal Procedure Code, which states the request of preventative prison for the accused. They also claim that the policy of drug prosecution is not about seizing the kilos, but about seizing the small drug dealers, because they promote the addiction. About the caution, the judge mentioned Article 173 of the Criminal Procedure Code, which states the requirements to impose preventive prison in case of crimes which maximum penalties are less than five years of prison. In such cases, the judge has the ability to impose pre-trial prison or not.

The prosecutor usually accuses of drug

trafficking those people detained with five up to 20 grams of marijuana, according to the police investigations, which follow up their actions during a specified time and accumulate evidence against the accused, but what really matters is what can be proved in trial. In relation to the misdemeanors, at the moment of arrest in these cases, the Police claim that it is State Policy and Police policy not to mediate, even though the Penal Code allows mediation and Article 563 commands mediation in cases of misdemeanors. 3. The existent regulation of cannabis in Nicaragua. 3.1 The General Law of Health (Law No. 423) and the Law of Medicine and Pharmacy (Law No. 292). The General Law of Health (Law No. 423), states in its Article 60 that the sanitary control and regulation of products and pharmacies, to the production, storing, transport, distribution and commercialization of narcotics and psychotropics, will be done according the special laws and their respective regulations, among which is the Law of Medicine and Pharmacy (Law No. 292). This law states the restrictions of narcotics substances and psychotropics.

Article 36 of Law No. 292 states that the narcotic and psychotropic substances included in the Single Convention on Narcotics Drugs and the Convention on Psychotropic Substances will be regulated by this law and by its particular legislation. Article 39 of the same Law states that every person is prohibited from the importation and exportation of any drug or narcotic because its use could produce physical or psychic dependence in the people who use it, and they are included in the respective restricted list designated in the regulations of the Ministry of Health. The authorization of fabrication, importation and exportation, of narcotics and psychotropic substances will be exclusively ascribed to the Ministry of Health; natural or legal persons directly or expressly be authorized directly or expressly by the Ministry of Health to import such substances, should limit the amount of quantities to the medical needs and the scientific research of the country. In all the cases, such activities of production, importation, and exportation will be done according to the international conventions subscribed or ratified by the government. Article 41 states that the psychotropics will be prescribed by doctors and dentists in the legal usage of their professions. Article 42 states that the prescriptions that order the provision of narcotics substances, psychotropics or drugs prepared that contain them will expire in fifteen days after its expedition. Article 44 states that all persons are obligated to allow the immediate entry of the authorities of the Ministry of Health, properly identified, to their industrial commercial or storing establishment and the immobile goods under their surveillance for the purpose of taking samples if necessary to control the conditions of production, traffic, holding, storing, or provision of medicines and specially narcotics, psychotropic substances or products, declared of restricted use. Article 45 states that it is purview of the Ministry of Health to authorize and oversee everything concerned with the production, exportation, importation, commercialization, prescription and consumption of narcotics and psychotropics. Article 46 states that only pharmaceutical establishments which hold sanitary licensure and which are properly regulated will be authorized to provide to the public medicines which contain narcotics or psychotropics, and will be obligated to provide prescriptions

meeting the pertinent regulatory provisions and to control strictly the movement of such medicines, sending reports monthly to the Ministry of Health. Article 47 states that psychotropic products may only be prescribed by specialists through accepted prescription, and narcotics, by special prescriptions established for that purpose by the Ministry of Health. Article 48 states that the promotion of psychotropics and narcotics is not allowed in any of way. 3.2 The Regulation of the Law No. 292. The Regulation of the Law No. 292, states in its Article 30 that in case of controlled substances, included cannabis, only the official form can be used for prescription by the medical professionals mentioned in this article, and such prescriptions should fill the following requirements: 1) Only the specified professionals may prescribe narcotics, who must have their qualifications registered at the Ministry of Health. Medical professionals with specialties in: -Surgery-Oncology-Gynecology-Anesthesiology 2) The medical prescription which prescribes narcotics, will have the following data: 2.1 Name, surname, signature and code of the medical doctor who prescribes on the front and back of the prescription. 2.2) Date the medical prescription was written. 2.3) the name of the product, concentration, pharmaceutical form, route of administration, doses, days of treatment and quantity prescribed. Here it is necessary to avoid abbreviation, because its use often leads to errors. 3) Name and surname of the patient. The medical prescription is valid without amendments and filled with all the information and within fifteen days from the date of being issued, which should be written with ink. It is prohibited strictly to Professionals are strictly prohibited from prescribing narcotics with medical prescription forms belonging to another specialist. Article 33 states that with regard to the control and distribution of substances, which may be subject to control, the following must be observed: 1) The production and safekeeping of psychotropics and narcotics will be under the control and surveillance of the pharmaceutical regent of the laboratory, who should keep track of all of the productive process. 2) The distribution and merchandising of psychotropics and narcotics in pharmaceutical establishments will be under surveillance and control of the pharmaceutical regent. 3) The establishments authorized to possess psychotropics and narcotics are obligated to keep track of and control over the importation, production, distribution and commercialization of these products. 4) The establishments authorized

for the management of psychotropics and narcotics are obligated to inform the General Directorate of Pharmacy of the existence, the entry, exit, and balance of these products on the forms established for such purpose. When a pharmaceutical product contains in its formula psychotropic substances or narcotics, the label should say “This product could create dependence”. Article 34 states that procedure to extend permission for fabrication, importation, and exportation of narcotics and psychotropic substances will be the following: For importation and exportation 1) The import of psychotropics and narcotics will be subject to the annual provisions made by the Ministry of Health, according to the needs of the country. 2) Every exportation and importation of raw material or final products containing psychotropic substances and narcotics, must first obtain a permit from the Ministry of Health. 3) The requirements of this permit will be the following: Commercial Name of the Product-Generic Name of the Product-Pharmaceutical FormConcentration for dosing unit- Presentation- Quantity to be imported- Total in grams or kilos- signature of importer-agent of the importer’s signature- Consignee – Name and country of origin of the exporting firm - Name and country of origin of the manufacturing laboratory -The request should be presented in original and copy signed by the pharmaceutical professional responsible of the regency of the importing firm. 4) Every permit will be valid for one year from the date of issue. 5) for authorization of the introduction of psychotropics and narcotics, once they are at border control, the importer should present before the Directorate General

of Pharmacy

his or her

respective commercial bill, supported with a copy of the permit of importation issued by the Ministry of Health. 6) For the purposes of exportation of psychotropics and narcotics, the Ministry of Health will demand the authorization of importation, provided by competent authorities of the importing country. 7) In every importation of psychotropics and narcotics, the Ministry of Health will proceed to give back to the provider country, the permit of exportation issued by such country, notifying it of the introduction of such substances. 9) The exportation and importation via postal mail of raw matter or final products containing psychotropics and narcotics is prohibited. For production: 1) Only those laboratories properly registered and authorized by the Ministry of Health will be authorized for the production of psychotropics and narcotics. 2) For the production of psychotropics and narcotics, the fabricating laboratory should present its plan of production, stating kind of product, quantity to be produced, and

period of production. 3) The production of psychotropics and narcotics will be subject to supervision and control by the Ministry of Health. According to Article 50, cannabis and tetrahidrocanabinol are on the list of psychotropic substances. 4. Conclusion. As we can observe, according to the interview with the former local penal judge of León, in Nicaragua the law about misdemeanors related to marijuana is not applied, so there is a de facto decriminalization. Also, there is already regulation of narcotics and psychotropics for medical and scientific purposes, and cannabis is included in the list of psychotropics. Besides, there is an exception in Article 18 of Law No. 735 for the cultivation of cannabis. This could be a window for the regulation of the cannabis plant in Nicaragua as well as its production, commercialization and consumption.