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Is the Cultivation of Marijuana Legal for Personal Consumption?

Posted in: Information Topic
Author: Myra Cecilia Azzopardi
Tags: ,

CAB advisers have revised the information they have and adhere to the information provided earlier and always on this subject.  If new royal decrees are published on this subject, we will update.

It should be made clear that in this case CAB will post the facts based on both the Spanish penal code and the royal decrees both on the cultivation of cannabis and the legality of associations for the consumption of the same.  The matter in hand is of a serious enough nature for us not to take any responsibility for the interpretation of any laws by our members. Cannabis associations have published their interpretation of the law and it appears these are the sources where many obtain their information. The information is provided below and nowhere can it be found where the law states that you can grow one, two or any quantity of plants.

Article 368 from the Spanish penal code.

Los que ejecuten actos de cultivo, elaboración o tráfico, o de otro modo promuevan, favorezcan o faciliten el consumo ilegal de drogas tóxicas, estupefacientes o sustancias psicotrópicas, o las posean con aquellos fines, serán castigados con las penas de prisión de tres a seis años y multa del tanto al triplo del valor de la droga objeto del delito si se tratare de sustancias o productos que causen grave daño a la salud, y de prisión de uno a tres años y multa del tanto al duplo en los demás casos.

Article 368.

Those who execute acts of cultivation, processing or trafficking, or otherwise promote, favour or facilitate the illegal consumption of toxic drugs, narcotics or psychotropic substances, or possess them for those purposes, shall be punished with prison sentences of three to six years and fine of both the triple of the value of the drug subject of the offence in the case of substances or products that cause serious damage to health, and imprisonment of one to three years and a fine of twice as much in the other cases.

(There will be questions linking the cultivation only to trafficking, should note that the sentence does not say “those who execute acts of cultivation for the etc”).

No obstante lo dispuesto en el párrafo anterior, los tribunales podrán imponer la pena inferior en grado a las señaladas en atención a la escasa entidad del hecho y a las circunstancias personales del culpable. No se podrá hacer uso de esta facultad si concurriere alguna de las circunstancias a que se hace referencia en los artículos 369 bis y 370.

Notwithstanding the provisions of the preceding paragraph, the courts may impose the penalty that is lower in degree than those indicated in light of the limited nature of the act and the personal circumstances of the offender. This faculty may not be used if any of the circumstances referred to in articles 369 bis and 370.

Paragraph above refers to these classes of professionals who will not be treated leniently.

Article 369

1. The penalties superior in degree to those indicated in the previous article and a fine of four times will be imposed when any of the following circumstances occur:

1st. The culprit was an authority, public official, doctor, social worker, teacher or educator and work in the exercise of his position, profession or trade.

2. The guilty party will participate in other organised activities or whose execution is facilitated by the commission of the crime.

From the Royal Decree of 2015 translation.

These are serious infringements.

16. Illicit consumption or possession of toxic drugs, narcotics or psychotropic substances, even if they were not intended for traffic, in places, roads, public establishments or collective transport, as well as the abandonment of the instruments or other effects used for this in the cited places.

18. The execution of acts of illicit plantation and cultivation of toxic drugs, narcotics or psychotropic substances in places visible to the public, when they are not constituting a criminal offence

(18. Does not say that the cultivation on places invisible to the public is legal, the infraction would be noted for  the distinction between cultivation as being a crime or an administrative offence). We can be clear that the gag law above does not exempt the private cultivation from the law.

Legality of associations for the consumption  of Cannabis. 

Some may have read the Royal Decree of June 2017 which is for the regularisation and control of cultivation and consumptions in these associations. This decree which is for Catalonia has been repealed.

“The Plenary of the Constitutional Court, by order of November 28, has agreed to admit the appeal of unconstitutionality no. 5003-2017, promoted by the President of the Government, against the Law of the Parliament of Catalonia 13/2017, of July 6, of cannabis consumer associations. And it is stated that the President of the Government has invoked art. 161.2 of the Constitution, which produces the suspension of the validity and application of the challenged law from the filing date of the appeal – October 13, 2017 -, for the parties to the proceedings, and from the publication of the corresponding edict in the ” Official State Bulletin”

So in regard to the cultivation of cannabis CAB states that ;  “the law is ambiguous and that according to legal experts the legality of cultivation for private use can only be interpreted by omission and that it would be irresponsible for CAB to confirm that as fact”.

The choices made by members is their responsibility.

Please note: The information provided is based upon our understanding of current legislation. It is not legal advice but is provided freely to enable you to be properly informed. We recommend that if you are considering taking action, you should seek professional advice.

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